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THE FRAMING
OF
INDIA’S CONSTITUTION
SELECT DOCUMENTS
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AUSTRALIA
The Law Book Company Ltd.
Sydney: Melbourne: Brisbane
CANADA
The Carswell Company Ltd.
Toronto
NEW ZEALAND
Sweet & Maxwell (N. Z.) Ltd.
Wellington
U.K.
Sweet & Maxwell Ltd.
London
U.S.A.
Oceana Publications, Inc.
Dobbs Ferry, N. Y.
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THE FRAMING
OF
INDIA’S CONSTITUTION
SELECT DOCUMENTS
THE PROJECT COMMITTEE
Chairman
B. SHIVA RAO
Members
V. K. N. MENON J. N. KHOSLA
K. V, PADMANABHAN C. GANESAN
P. N. KRISHNA MANI
Chief Research Officer
SUBHASH C. KASHYAP
Asst . Research Officer
N. K. N. IYENGAR
VOL. II
THE INDIAN INSTITUTE OF PUBLIC ADMINISTRATION
" NEW DELHI
Distributors
N. M. TRIPATHI PRIVATE LTD.
BOMBAY
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FIRST PUBLISHED 1967
ConpmloH Volume
THE FRAMING OF INDIA'S CONSTITUTION
A STUDY
© THE INDIAN INSTITUTE OF PUBLIC ADMINISTRATION, 1967
PRINTBD IN INDIA
THE MANAOBR, GOVERNMENT OF INDIA PRBSS, NASIK
1967
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PREFACE
The contents of this (second) volume of documents
relating to the framing of India’s Constitution cover in the main
the period during which the Constituent Assembly and its
committees considered and settled the basic principles of a large
number of important provisions of the Constitution. The main
committees set up by the Assembly to formulate these principles
were the Advisory Committee on Fundamental Rights, Minori¬
ties, and Tribal and Excluded Areas, the Union Constitution
Committee, the Provincial Constitution Committee, and the
Union Powers Committee. The first of these committees
appointed two sub-committees, one on fundamental rights and
the other on minorities.
The first part of this volume contains the Objectives
Resolution moved by Jawaharlal Nehru in the Constituent
Assembly on December 13, 1946 and the speeches on the resolu¬
tion by Nehru himself and Radhakrishnan.
In the second part are contained the discussions on funda¬
mental rights—the setting up of the Advisory Committee, the
proceedings and minutes of the Advisory Committee, the
minutes of the sub-committee on fundamental rights, the more
important notes and memoranda placed before these
committees, the reports of the sub-committee and the Advisory
Committee, and the clauses on fundamental rights as adopted
by the Constituent Assembly in its meetings in April and May
1947.
The third part contains papers relating to minorities, the
notes and memoranda submitted to the sub-committee on
minorities, the minutes of the sub-committee and the Advisory
Committee, the reports of the sub-committee and the Advisory
Committee, Vallabhbhai Patel’s speech moving the Advisory
Committee’s report for consideration by the Assembly, and the
report as adopted by the Assembly in August 1947.
The fourth part relates to the two committees that were
set up to determine the principles of the Union and Provincial
Constitutions. It includes a questionnaire prepared by
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B. N. Rau, the notes and memoranda submitted to, and the
minutes of, the Union Constitution Committee and the
Provincial Constitution Committee, and the minutes of the
joint meetings of these two committees, as well as their reports.
The fifth part contains the minutes of the ad hoc Committee
on Citizenship.
In the sixth part are included some preliminary notes
on Union subjects prepared by B. N. Rau, the first and the
second Reports of the Union Powers Committee, Gopalaswami
Ayyangar’s speech moving the second report, and the report of
the committee as adopted by the Assembly in August 1947.
New Delhi: J. N. KHOSLA
January 26, 1967.
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CONTENTS
Page
Preface i
Part One
THE OBJECTIVES
1. The Objectives Resolution, December 1946— January 1947— 3
(i) Text of the Resolution .. 3
(ii) Nehru’s Speech on the Resolution 4
(iii) Radhakrishnan’s Speech .... 11
Part Two
FUNDAMENTAL RIGHTS
2. Preliminary Notes on Fundamental Rights, September-December 1946— 21
(i) Notes on Fundamental Rights by B. N. Rau, September 2,1946 21
(ii) A Note on Fundamental Rights by K. T. Shah, December 23,1946 36
3. Setting up of the Advisory Committee, January 24,1947— 56
(i) Text of the Resolution. 56
(ii) Pant’s Speech moving the Resolution. 57
4. Sub-Committee on Fundamental Rights, February-April 1947— 64
(i) Minutes of the first meeting of the Advisory Committee, February
27, 1947 . 64
(ii) Notes, Memoranda and Drafts submitted to the Sub-Committee, March
1947 67
(iii) Minutes of the meetings of the Sub-Committee, February 21-March
31,1947 . 114
(iv) Draft Report of the Sub-Committee, April 3,1947 ... 137
(v) Notes and Comments on the Draft Report, April 4-15,1947 143
(vi) Minutes of Dissent to the Draft Report, April 14,1947 . . 161
(vii) Minutes of the meetings of the Sub-Committee, April 14-15, 1947 . 163
(viii) Report of the Sub-Committee on Fundamental Rights, April 16,1947 . 169
(ix) Minutes of Dissent to the Report, April 17-20, 1947 .... 176
5. Sub-Committee on Minorities, April 1947— 199
(i) Minutes of the meetings of the Sub-Committee, April 17-19, 1947 . . 199
(ii) Interim Report of the Sub-Committee on Minorities, April 19,1947 . 207
6. Advisory Committee Proceedings, April 21-22,1947— 210
(i) A Note by Alladi Krishnaswami Ayyar regarding Amendments to be
moved before the Advisory Committee, April 19, 1947 . . 210
(ii) A Note by Alladi Krishnaswami Ayyar regarding the ‘Freedcmcf
Religion’ and ’Equality Before Law’ clauses, April 20,1947 211
(iii) A Note by Rajkumari Amrit Kaur regarding the ‘Freedom of Religion’
clause, April 20, 1947 212
(iv) Proceedings of the meetings of the Advisory Committee, April 21.22,1947 213
(v) Minutes of the meetings of the Advisory Committee, April 21-22, 1947 . 287
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7. Advisory Committee Reports on Fundamental Rights, April-August 1947— 293
(i) Interim Report of the Advisory Committee on Fundamental Rights,
April 23, 1947 294
(ii) Report of the ad hoc Committee on clause 11 of the Annexure to the
Interim Report of the Advisory Committee on the subject of Funda¬
mental Rights, A/ay 1,1947 299
(iii) Clauses on Fundamental Rights as adopted by the Constituent
Assembly, April-May 1947 300
(iv) Supplementary Report of the Advisory Committee on the subject of
Fundamental Rights, August 25, 1947 . 304
Part Three
MINORITIES
8. Notes and Memoranda submitted to the Sub-Committee on Minorities,
MarckJuly 1947— 309
(i) Memoranda by Members of the Sub-Committee . 309
(ii) Memoranda by other individuals and organisations .... 373
9. Minutes and Summary of the Decisions of the Sub-Committee on
f Fe hr uary-Jufy 1947— 387
(0 Minutes of the meetings on February 27-28, 1947 .... 387
(li) Summary of the Decisions taken at the meetings on July 21-25,1947 . 392
10. Report of the Sub-Committee on Minorities, July 27,1947— 396
(i) Report of the Sub-Committee, July 27,1947 . 396
(ii) Minute of Dissent by H. J. Khandekar, July 25,1947 400
(iii) Minute of Dissent by Rajkumari Amrit Kaur, July 27,1947 . 401
11. Minutes of the meetings of the Advisory Committee, July 28-31,1947 403
12. Reports on Minority Rights, August 1947— 411
(i) Report of the Advisory Committee on the subject of Minority Rights,
August 8,1947. 411
(ii) Report i f the Sub-Committee on the position to be accorded to Anglo-
Indians in Services and in the Educational System, August 22,
1947 419
(iii) Supplementary Report of the Advisory Committee on the position of
Anglo-Indians, August 25, 1947 421
(iv) Patel’s Speech moving the Report for consideration, August 27,1947 . 423
(v) Clauses on Minorities as adopted by the Constituent Assembly, August
1947 426
Part Four
PRINCIPLES OF THE UNION AND PROVINCIAL CONSTITUTIONS
13. The Questionnaire issued by the Constitutional Adviser, March 17,1947 . 433
14. Setting up of the Union Constitution Committee and the Provincial
Constitution Committee, April-Moy 1947— 452
(i) Constituent Assembly Resolution, April 30, 1947 .... 452
(ii) Personnel of the Union Constitution Committee.452
(iii) Personnel of the Provincial Constitution Committee .... 453
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15. Notes, Memoranda etc. submitted to the Union Constitution Committee,
May-June 1947— 454
(i) K.T. Shah's ‘General Directives’, December 1946 .... 455
(ii) Memorandum on the Union Constitution and draft clauses prepared
by the Constitutional Adviser, May 30,1947 . 470
(iii) K. M. Panikkar’s and S. P. Mookerjee’s replies to the Questionnaire . 528
(iv) A Note on some general principles of the Union Constitution by
K. M. Panikkar, May 1947 . 533
(v) A further Note on some principles of the Unicn Constitution by
K. M. Panikkar, June 3, 1947 . 539
(vi) Memorandum on the Principles of the Union Constitution prepared by
N. Gopalaswami Ayyangar and Alladi Krishnaswami Ayyar, June 1947 540
16. Minutes of the meetings of the Union Constitution Committee, May-
August 1947 . 552
17. Minutes of the meetings of Sub-Committees appointed by the Union
Constitution Committee June-July 1947— 571
(i) Minutes of the meeting of Sub-Committee I ard Sub-Committee II,
June 10,1947 . 571
(ii) Minutes of the meeting of the Sub-Committee on Amendment of
the Constitution, July 11,1947 . 573
18. Reportsofthe Union Constitution Committee, July 1947— 574
(i) Report of the Union Constitution Committee, July 4, 1947 . 574
(ii) Supplementary Report of the Union Constitution Committee, July
13, 1947 591
(iii) Statement circulated by Jawaharlal Nehru on the Report of the
Union Constitution Committee, July 18, 1947 .... 592
(iv) Memorandum on the Indian Constitution as adopted by the
Constituent Assembly, July 1947 . 593
19. Minutes of the Joint Meetings of the Union Constitution and Provincial
Constitution Committees, June-July 1947 . 606
20. Minutes of the meetings of Joint Sub-Committees of the Union
Constitution and Provincial Constitution Committees, June-July 1947— 615
(i) Minutes of the meeting of the Joint Sub-Committee on the June 3
Plan, June 8, 1947 . 615
(ii) Minutes of the meetings of the Special Sub-Committee appointed by
the Joint Sub-Committee, June-July 1947 ..... 617
(iii) Minutes of the meeting of the Joint Sub-Committee on Linguistic
Provinces, June 12,1947 ........ 617
21. Replies to the Questionnaire and Memoranda regarding the Provincial
Constitution, May-June 1947— 619
(i) Statement showing the replies of the Members of the Provincial
Constitution Committee to the Questionnaire issued to them. May 1947 620
(ii) Memorandum on the Principles of a Model Provincial Constitution
prepared by the Constitutional Adviser, May 30, 1947 . • 632
(iii) Summary of Rohini Kumar Choudhury’s Memorandum regarding
a Provincial Constitution, June 1947 . 641
(iv) Twelve Points for the Framing of a Provincial Constitution by
Phulan Prasad Varma, June 1947 . 643
22. Minutes of the meetings of Provincial Constitution Committee, May-
June 1947 .. 645
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23. Minutes of the meetings of Sub-Committees appointed by the Provincial
Constitution Committee, June 1947— 654
(i) Minutes of the meeting of Sub-Committee I, June 10,1947 . 654
(ii) Minutes of the meeting of Sub-Commi tee II, June 10,1947 . . 655
24. Report of the Provincial Constitution Committee, June-July 1947— 656
(i) ReportoftheProvincialConstitutionCommittee, June 27, 1947 . 656
(ii) B. Q. Kher’s Comments on the Report of the Provincial Constitution
Committee, June-July 1947 . 663
(iii) Patel's Speech moving the Report for consideration, July 15,1947 . . 664
(iv) Report of the ad hoc Committee on Clause 8 of Part I of the Provincial
Constitution, July 17,1947 667
(v) Principles of a Model Provincial Constitution as adopted by the
Constituent Assembly.667
Part Five
CITIZENSHIP
25. Ad Hoc Committee on Citizenship, May-July 1947— 677
(i) Reportoftheo/Aoc Committee, May 1, 1947 . 678
(ii) Notes submitted to the ad hoc Committee 678
(iii) Minutes of the meeting of the ad hoc Committee, July 12,1947 . 682
Part Six
DISTRIBUTION OF POWERS
26. Preliminary notes on Union Subjects issued by the Constitutional Adviser,
September 1946— 687
(i) Union Subjects (1).687
(ii) Union Subjects (II).701
27. Setting up of the Union Powers Committee, January 1947— 707
(i) Text of the Resolution, January 25, 1947 707
(ii) Rajagopalachari’s Speech.708
28. Notes submitted to the Union Powers Committee, February-April 1947— 712
(i) Notes on Union Powers, by K. M. Munshi.712
(ii) Notes on Union Powers, by Alladi Krishnaswami Ayyar . 714
(iii) A note on the Ambit of Defence Power,by B.N.Rau,Af<nrcA 4,1947 . 725
(iv) A noteon Union Subjects (Optional List), by B. Das, April 17,1947 727
29. Proceedings/Minutes of the Union Powers Committee, March-April 1947— 728
(i) Summary of the Proceedings of the Union Powers Committee meeting,
March 2, 1947 728
(ii) Minutesofthe Union Powers Committee meetings, March 3-4,1947 . 734
(iii) Result of the Discussions of the Sub-Committee, April 1947 . 737
(iv) The Draft Report, April 1947 . 738
(v) Paragraph suggested by the Representatives of Princely States (B. L.
MitterandV.T. Krishnamachari) and Alladi Krishnaswami Ayyar to
replace the last portion of Para 2 of the Draft Report .... 742
(vi) Minutes of the Union Powers Committee meetings, April 16-17,1947 . 742
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30. First Report of the Union Powers Committee, April 1947— 743
(i) Text of the Report, April 17, 1947. 743
(ii) Gopalaswami Ayyangar’s Note, April 18, 1947 747
31. Notes submitted to the Union Powers Committee, June 1947 — 731
(i) Letter from the Department of Agriculture, Government of India,
June 4,1947 . 731
(ii) Letter from the Department of Educaticn (University Grants
Committee) to B. N. Rau, June 26, 1947 . 732
(iii) A note by Pattabhi Sitaramayya presenting a case for Concurrent Juris¬
diction over Broadcasting, June 28, 1947 . 733
(iv) A note by V. T. Krishnamachari on Union Finance in relation to the
Princely States, June 29, 1947 . 75 6
(v) A note by K. M. Munshi on subjects to be added to the Union Powers,
June 30, 1947 . 737
(vi) A note by D. P. Khaitan on subjects to be added to the Union Powers,
June 1947 759
32 Minutes of the Joint Meetings of the Union Powers and Union Constitution
Committees, June-July 1947 761
33. Second Report of the Union Powers Committee, July-August 1947— 776
(i) Text of the Report, July 5, 1947 . 776
(ii) Comparative Tables showing items included in the Reports of the
Union Powers Committee and the 1935 Act .... 785
(iii) Gopalaswami Ayyangar’s Speech moving the Report for consideration,
August 20, 1947 . 795
(iv) Report as adopted by the Constituent Assembly, August 1947 . 8 O 3
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PART ONE
THE OBJECTIVE
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THE OBJECTIVES RESOLUTION
December 1946—January 1947
[The Experts Committee appointed by the Indian National Congress
for preparing material for the Constituent Assembly decided on July
20 — 22, 1946, that in the first session of the Constituent Assembly,
after the appointment of an advisory committee on fundamental rights,
etc., a resolution outlining the main objectives of the Constituent Assem¬
bly should be moved L The text of the proposed Objectives Resolution
as drafted by Jawaharlal Nehru was accepted by the committee [see
Vol. I, Document No. 64 (//)]. Later, on the eve of the summoning of
the Constituent Assembly—November 20 [see Vol. 1, Document No.
6£(v )]—the Congress Working Committee adopted a resolution which
briefly reiterated the essential objectives of the Constitution [see Vol. I,
Document No. 64 (v)]. When the Constituent Assembly met on 9th
December, one of the earliest tasks to which it addressed itself was to
declare the basic objectives and guiding principles to be kept in view
in the processes of constitution-making. This was achieved by the
historic Objectives Resolution moved by Nehru on December 13, four
days after the first sitting of the Assembly. The draft of the resolu¬
tion, which closely followed the text adopted by the Congress Experts
Committee, was approved by the Working Committee of the Congress,
meeting a day before the first meeting of the Constituent Assembly.
The Assembly discussed it for five days {December 13 to 19). On
December 21, its consideration was postponed until after the Christmas
recess in the hope that by then the absentees—the representatives of
the Muslim League and the Princely States—might also agree to come
in, join in the task of constitution-making and, as a first step, have an
opportunity of expressing their views on the Objectives Resolution.
The resumed discussion lasted three more days—January 20—22, 1947.
On the last day it was adopted unanimously and in a solemn manner,
all members standing. The texts of the resolution and Nehru's
(December 13) and Radhakrishnan's (January 20, 1947) speeches
commending it to the Assembly are reproduced below.]
(i) TEXT OF THE RESOLUTION
(1) THis Constituent Assembly declares its firm and solemn resolve to
proclaim India as an Independent Sovereign Republic and to draw
up for her future governance a Constitution ;
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FRAMING OF INDIA’S CONSTITUTION
(2) wherein the territories that now comprise British India, the territo¬
ries that now form the Indian States, and such other parts of India as are
outside British India and the States, as well as such other territories as are
willing to be constituted into the Independent Sovereign India, shall be a
Union of them all; and
(3) wherein the said territories, whether with their present boundaries
or with such others as may be determined by the Constituent Assembly
and thereafter according to the law of the Constitution, shall possess and
retain the status of autonomous units, together with residuary powers, and
exercise all powers and functions of government and administration, save
and except such powers and functions as are vested in or assigned to the
Union, or as are inhermit or implied in the Union or resulting
therefrom; and
(4) wherein all power and authority of the Sovereign Independent India,
its constituent parts and organs of government, are derived from the people;
and
(5) wherein shall be guaranteed and secured to all the people of India
justice, social, economic and political; equality of status, of opportunity,
and before the law; freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and public morality; and
(6) wherein adequate safeguards shall be provided for minorities, back¬
ward and tribal areas, and depressed and other backward classes; and
(7) whereby shall be maintained the integrity of the territory of the
Republic and its sovereign rights on land, sea, and air according to justice
and the law of civilized nations, and
(8) this ancient land attains its rightful and honoured place in the world
and makes its full and willing contribution to the promotion of world peace
and die welfare of mankind.
(n) NEHRU'S SPEECH ON THE RESOLUTION*
Sir, this is the fifth day of this first session of the Constituent Assembly.
Thus far we have laboured on certain provisional and procedural matters
which are essential. We have a dear field to work upon ; we have to pre¬
pare the ground and we have been doing that these few days. We have
still much to do. We have to pass our Rules of Procedure and to appoint
committees and the like, before we can proceed to the real step, to the
real work of this Constituent Assembly, that is, the high adventure of giving
shape, in the printed and written word, to a Notion’s dream and aspiration.
But even now, at this stage, it is surely desirable that we should give some
indication to ourselves, to those who look to this Assembly, to those millions
in this country who are looking up to us and to the world at large, as to
*C. A Deb., Vol. I, pp. 57-6Z
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THE OBJECTIVES RESOLUTION
5
what we may do, what we seek to achieve, whither we are going. It is
with this purpose that I have placed this Resolution before this House. It
is a Resolution and yet, U is something much more than a resolution. It
is a Declaration. It is a firm resolve. It is a pledge and an undertaking
and it is for all of us I hope a dedication. And I wish this House, if I may
say so respectfully, should consider this Resolution not in a spirit of narrow
legal wording, but rather look at the spirit behind that Resolution. Words
are magic things often enough, but even the magic of words sometimes
cannot convey the magic of the human spirit and of a Nation’s passion.
And so, I cannot say that this Resolution at all conveys the passion that
lies in the hearts and the minds of the Indian people today. It seeks very
feebly to tell the world of what we have thought or dreamt of so long, and
what we now hope to achieve in the near future. It is in that spirit that
1 venture to place this Resolution before the House and it is in that spirit
that I trust the House will receive it and ultimately pass it. And may I,
Sir, also, with all respect, suggest to you and to the House that, when the
time comes for the passing of this Resolution let it be not done in the formal
way by the raising of hands, but much more solemnly, by all of us standing
up and thus taking this pledge anew.
The House knows that there are many absentees here and many mem'
bers who have a right to come here have not come. We regret that fact
because we should have liked to associate with ourselves as many people,
as many representatives from the different parts of India and different groups
as possible. We have undertaken a tremendous task and we seek the co¬
operation of all people in that task; because the future of India that we
have envisaged is not confined to any group or section or province or other,
but it comprises all the four hundred million people of India, and it is with
deep regret that we find some benches empty and some colleagues, who
might have been here, absent. I do feel, I do hope that they will come
and that this House, in its future stages, will have the benefit of the co¬
operation of all. Meanwhile, there is a duty cast upon us and that is to
bear the absentees in mind, to remember always that we are here not to
function for one party or one group, but always to think of India as a whole
and always to think of the welfare of the four hundred millions that com¬
prise India. We are all now, in our respective spheres, partymen, belong¬
ing to this or that group and presumably we shall continue to act in our
respective parties. Nevertheless, the time comes when we have to rise above
party and think of the Nation, think sometimes of even the world at large
of which our Nation is a great part. And when I think of the work of this
Constituent Assembly, it seems to me, the time has come when we should,
so far as we are capable of it, rise above our ordinary selves and party
disputes and think of the great problem before us in the widest and most
tolerant and most effective maimer so that, whatever we may produce, should
be worthy of India as a whole and should be such that the world should
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FRAMING OF INDIA'S CONSTITUTION
recognise that we have functioned, as we should have functioned, in this
high adventure.
There is another person who is absent here and who must be in the
minds of many of us today—the great leader of our people, the father
of our Nation ( applause )—who has been the architect of this Assembly and
all that has gone before it and possibly of much that will follow. He is not
here because, in pursuit of his ideals, he is ceaselessly working in a far
corner of India. But I have no doubt that his spirit hovers over this place
and blesses our undertaking.
As I stand here. Sir, I feel the weight of all manner of things crowding
around me. We are at the end of an era and possibly very soon we shall
embark upon a new age; and my mind goes back to the great past of
India, to the 5,000 years of India’s history, from the very dawn of that
history which might be considered almost the dawn of human history, till
today. All that past crowds around me and exhilarates me and, at the
same time, somewhat oppresses me. Am I worthy of that past? When
I think also of the future, the greater future I hope, standing on this sword’s
edge of the present between this mighty past and the mightier future, I
tremble a little and feel overwhelmed by this mighty task. We have come
hone at a strange moment in India’s history. I do not know but I do
feel that there is some magic in this moment of transition from the old
to the new. something of that magic which one sees when the night turns
into day and even though the day may be a cloudy one. it is day after all,
for when the clouds move away, we can see the sun later on. Because of
all this I find a little difficulty in addressing this House and putting all my
ideas before it and I feel also that in this long succession of thousands of
years, I see the mighty figures that have come and gone and I see also the
long succession of our comrades who have laboured for the freedom of
India. And now we stand on the verge of this passing age, trying, labour*
ing, to usher in the new. I am sure the House will feel the solemnity of
this moment and will endeavour to treat this Resolution which it is my
proud privilege to place before it in that solemn manner. I believe there
are a large number of amendments coming before the House. I have not
seen most of them. It is open to the House, to any member of this House,
to move any amendment and it is for the House to accept it or reject it,
but I would, with all respect, suggest that this is not a moment for us
to be technical and legal about small matters when we have big things to
face, big things to say and big things to do, and therefore I would hope
that the House would consider this Resolution in this big manner and not
lose itself in wordy quarrels and squabbles.
I thinlr also of the various Constituent Assemblies that have gone before
and of what took place at the making of the great American nation when
the fathers of that nation met and fashioned out a constitution which has
stood the test of so many years, more than a century and a half, and of
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THE OBJECTIVES RESOLUTION
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the great nation which has resulted, which has been built up on the basis
of that Constitution. My mind goes back to that mighty revolution which
took place also over 150 years ago and to that Constituent Assembly that
met in that gracious and lovely city of Paris which has fought so many battles
for freedom, to the difficulties that that Constituent Assembly had and to
how the King and other authorities came in its way, and still it continued.
The House will remember that when these difficulties came and even the
room for a meeting was denied to the then Constituent Assembly, they
betook themselves to an open tennis court and met there and took the oath,
which is called the Oath of the Tennis Court, that they continued meeting
in spite of Kings, in spite of the others, and did not disperse till they had
finished the task they had undertaken. Well, 1 trust that it is in that
solemn spirit that we too are meeting here and that we, too, whether
we meet in this chamber or other chambers, or in the fields or in the
market-place, will go on meeting and continue our work till we have
finished it.
Then my mind goes back to a more recent revolution which gave rise
to a new type of State, the revolution that took place in Russia and out of
which has arisen the Union of the Soviet Socialist Republics, another mighty
country which is playing a tremendous part in the world, not only a mighty
country but for us in India, a neighbouring country.
So our mind goes back to these great examples and we seek to learn
from their success and to avoid their failures. Perhaps we may not be able
to avoid failures because some measure of failure is inherent in human
effort. Nevertheless, we shall advance, I am certain, in spite of obstructions
and difficulties, and achieve and realise the dream that we have dreamt so
long. In this Resolution which the House knows has been drafted with
exceeding care, we have tried to avoid saying too much or too little. It
is difficult to frame a resolution of this kind. If you say too little, it becomes
just a pious resolution and nothing more. If you say too much, it en¬
croaches on the functions of those who are going to draw up a constitution,
that is, on the functions of this House. This Resolution is not a part of the
constitution we are going to draw up, and it must not be looked at as such.
This House has perfect freedom to draw up that Constitution and when
others come into this House, they will have perfect freedom too to fashion
that constitution. This Resolution therefore steers between these two
extremes and lays down only certain fundamentals which I do believe no
group or party and hardly any individual in India can dispute. We say
that it is our firm and solemn resolve to have an independent sovereign
republic. India is bound to be sovereign, it is bound to be independent
and it is bound to be a republic. I will not go into the arguments about
monarchy and the rest, but obviously we cannot produce monarchy in India
out of nothing. It is not there. If it is to be an independent and sovereign
State we are not going to have an external monarchy and we cannot have
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FRAMING OF INDIA’S CONSTITUTION
a search for some local monarchies. It must inevitably be a republic. Now,
some friends have raised the question : “Why have you not put in the word
‘democratic’ here?” Well, I told them that it is conceivable, of course, that a
republic may not be democratic but the whole of our past is witness to
this fact that we stand for democratic institutions. Obviously we are aiming
at democracy and nothing less than a democracy. What form of democracy,
what shape it might take is another matter. The democracies of the present
day, many of them in Europe and elsewhere, have played a great part in the
world’s progress. Yet it may be doubtful if those democracies may not have
to change their shape somewhat before long if they have to remain com*
pletely democratic. We are not going just to copy, I hope, a certain demo*
cratic procedure or an institution of a so-called democratic country. We
may improve upon it In any event whatever system of Government we
may establish here must fit in with the temper of our people and be accept¬
able to them. We stand for democracy. It will be for this House to deter¬
mine what shape to give to that democracy, the fullest democracy, I hope.
The House will notice that in this Resolution, although we have not used
the word ‘democratic’ because we thought it is obvious that the word
Yepublic’ contains that word and we did not want to use unnecessary words
and redundant words, but we have done something much more than using
the word. We have given the content of democracy in this Resolution and
not only the content of democracy but the content, if I may say so. of eco¬
nomic democracy in this Resolution. Others might take objection to this
Resolution on the ground that we have not said that it should be a Socialist
State. Well, I stand for Socialism and, I hope, India will stand for Socialism
and that India will go towards the constitution of a Socialist State and I
do believe that the whole world will have to go that way. What form of
Socialism again is another matter for your consideration. But the main
thing is that in such a Resolution, if, in accordance with my own desire,
I had put in, that we want a Socialist State, we would have put in something
which may be agreeable to many and may not be agreeable to some and
we wanted this Resolution not to be controversial in regard to such matters.
Therefore we have laid down, not theoretical words and formulae, but rather
the content of the thing we desire. This is important and I take it there can
be no dispute about it. Some people have pointed out to me that our
mentioning a republic may somewhat displease the Rulers of Indian States.
It is possible that this may displease them. But I want to make it clear
personally and the House knows, that I do not believe in the monarchical
system anywhere, and that in the world today monarchy is a fast disappear¬
ing institution. Nevertheless it is not a question of my personal belief in
this matter. Our view in regard to these Indian States has been, for many
years, first of all that the people of those States must share completely in
the freedom to come. It is quite inconceivable to me that there should be
different standards and degrees of freedom as between the people in the
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THE OBJECTIVES RESOLUTION
9
States and the people outside the States. In what manner the States will
be parts of that Union, that is a matter for this House to consider with the
representatives of the States. And I hope in all matters relating to the
States, this House will deal with the real representatives of the States. We
are perfectly willing, I take it, to deal in such matters as appertain to them,
with the Rulers or their representatives also, but finally when we make a
constitution for India, it must be through the representatives of the people
of the States as with the rest of India, who are present here. (Applause.)
In any event, we may lay down or agree that the measure of freedom must
be the same in the States as elsewhere. It is a possibility and personally I
should like a measure of uniformity too in regard to the apparatus and
machinery of Government. Nevertheless, this is a point to be considered
in co-operation and in consultation with the States. I do not wish, and I
imagine this Constituent Assembly will not like, to impose anything on the
States against their will. If the people of a particular State desire to have
a certain form of administration, even though it might be monarchical, it
is open to them to have it The House will remember that even in the
British Commonwealth of Nations today, Ireland is a Republic and yet in
many ways it is a member of the British Commonwealth. So, it is a con¬
ceivable thing. What will happen, I do not know, because that is partly
for this House and partly for others to decide. There is no incongruity or
impossibility about a certain definite form of administration in the States,
provided there is complete freedom and responsible Government there and
the people really are in charge. If monarchical figure-heads are approved by
the people of the State, of a particular State, whether I like it or not, I
certainly will not like to interfere. So I wish to make it clear that so far
as this Resolution or Declaration is concerned, it does not interfere in any
way with any future work that this Constituent Assembly may do. with any
future negotiations that it may undertake. Only in one sense, if you like,
it limits our work, if you call that a limitation, i.e., we adhere to certain
fundamental propositions which are laid down in this Declaration. Those
fundamental propositions, I submit, are not controversial in any real sense
of the word. Nobody challenges them in India and nobody ought to chal¬
lenge them and if anybody does challenge, well, we accept that challenge
and we hold our position. (Applause.)
Well, Sir, we are going to make a constitution for India and it is obvious
that what we are going to do in India, is going to have a powerful effect
on the rest of the world, not only because a new free independent nation
comes out into the arena of the world, but because of the very fact that
India is such a country that by virtue, not only of her large size and popula¬
tion, but of her enormous resources and her ability to exploit those resources,
she can immediately play an important and vital part in world
affairs. Even today, cm the verge of freedom as we are today, India has
begun to play an important part in world affairs. Therefore, it is right
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FRAMING OF INDIA'S CONSTITUTION
that the framers of our Constitution should always bear this larger inter¬
national aspect in mind.
We approach the world in a friendly way. We want to make friends
with all countries. We want to make friends, in spite of the long history
of conflict in the past, with England also. The House knows that recently
I paid a visit to England. I was reluctant to go for reasons which the House
knows well. But I went because of a personal request from the Prime
Minister of Great Britain. I went and I met with courtesy everywhere. And
yet at this psychological moment in India’s history when we wanted, when
we hungered for messages of cheer, friendship and co-operation from all
over the world, and more especially from England, because of the past
contact and conflict between us. unfortunately, I came back without any
message of cheer, but with a large measure of disappointment. I hope that
the new difficulties that have arisen, as every one knows, because of the
recent statements made by the British Cabinet and by others in authority
there, will not come in our way and that we shall yet succeed in going
ahead with the co-operation of all of us here and those who have not come.
It has been a blow to me, and it has hurt me that just at the moment
when we are going to stride ahead, obstructions were placed in our way.
new limitations were mentioned which had not been mentioned previously
and new methods of procedure were suggested. I do not wish to challenge
the bona fides of any person, but I wish to say that whatever the legal aspect
of the thing might be, there are moments when law is a very feeble reed
to rely upon, when we have to deal with a nation which is full of the
passion for freedom. Most of us here during the past many years, for a
generation or more, have often taken part in the struggle for India’s free¬
dom. We have gone through' the valley of the shadow. We are used to it
and if necessity arises, we shall go through it again. {Hear, hear) Never¬
theless, through all this long period, we have thought of the time when
we shall have an opportunity, not merely to struggle, not merely to destroy,
but to construct and create. And now, when it appeared that the time
was coming for constructive effort in a free India to which we looked
forward with joy, fresh difficulties are placed in our way at such a moment
It shows that whatever force might be behind all this, people who are
able and clever and very intelligent, somehow lack the imaginative daring
which should accompany great offices. For, if you have to deal with any
people, you have to understand them imaginatively; you should understand
them emotionally; and of course, you have also to understand them intellec¬
tually. One of the unfortunate legacies of the past has been that there has
been no imagination in the understanding of the Indian problem. People
have often indulged in, or have presumed to give us advice, not realising
that India, as she is constituted today, wants no one’s advice and no one’s
imposition upon her. The only way to influence India is through friendship
and co-operation and goodwill. Any attempt at imposition, the slightest
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THE OBJECTIVES RESOLUTION
11
trace of patronage, is resented and will be resented. (Applause.) We
have tried. I think honestly, in the last few months in spite of the difficul¬
ties that have faced us, to create an atmosphere of co-operation. We shall
continue that endeavour. But I do very much fear that that atmosphere
will be impaired if there is not sufficient and adequate response from others.
Nevertheless, because we are bent on great tasks. I hope and trust, that we
shall continue that endeavour and I do hope that if we continue, we
shall succeed. Where we have to deal with our own countrymen, we must
continue that endeavour even though in our opinion some countrymen of
ours take a wrong path. For, after all, we have to work together in this
country and we have inevitably to co-operate, if not today, tomorrow or
the day after. Therefore, we have to avoid in the present anything which
might create a new difficulty in the creation of that future which we are
working for. Therefore, so far as our own countrymen are concerned, we
must try our utmost to gain their co-operation in the largest measure. But,
co-operation cannot mean the giving up of the fundamental ideals on which
we have stood and on which we should stand. It is not co-operation to
surrender everything that has given meaning to our lives. Apart from that,
as I said, we seek the co-operation of England even at this stage which is
full of suspicion of each other. We feel that if that co-operation is denied,
that will be injurious to India, certainly to some extent, probably more so
to England, and to some extent, to the world at large. We have just come
out erf the World War and people talk vaguely and rather wildly of new
wars to come. At such a moment this New India is taking birth—renascent,
vital, fearless. Perhaps it is a suitable moment for this new birth to take
{dace out of this turmoil in the world. But we have to be clear-eyed at
this moment,—we, who have this heavy task of constitution-building. We
have to think of this tremendous prospect of the present and the greater
prospect of the future and not get lost in seeking small gains for this group
or that. In this Constituent Assembly we are functioning on a world stage
and the eyes of the world are upon us and the eyes of our entire past are
upon us. Our past is witness to what we are doing here and though the
future is still unborn, the future too somehow looks at us, I think, and so,
I would beg of this House to consider this Resolution in this mighty pros¬
pect of our past, of the turmoil of the present and of the great and unborn
future that is going to take place soon. Sir, I beg to move. (Prolonged cheers .)
(m) radhakrishnan’s speech*
Mr. Chairman, Sir, I have great pleasure in commending this Resolu¬
tion to the acceptance of the House. From the list of amendments tabled,
I see that there are three different questions raised: whether a 4 declaration
of this character is essential; whether this is the proper time fqj considering
*C. A. Deb., Vol. II, pp. 253-60. *
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12
FRAMING OF INDIA’S CONSTITUTION
such a declaration; and thirdly, whether the objectives included in this
Resolution are matters of general agreement or they require modification
or amendment
I believe that such a Declaration is essential. There are people who
are suspicious, who are wavering, who are hostile, who look upon the work
of this Constituent Assembly with considerable misgivings. There are people
who affirm that, within the Cabinet Plan, it will not be possible for us to
effect either real unity in the country or true freedom or economic security.
They tell us that they have seen before squirrels move round in a cage, and
that within the limits of this Cabinet Statement, it will not be possible for
us to effect the revolutionary changes which the country is aiming at They
argue from history that revolutionary changes are generally effected by
violent action overthrowing established Governments. The British people
were able to end monarchical despotism that way; the United States of
America attained her primary freedom through direct action; the French,
the Bolshevist, the Fascist and the Nazi revolutions were also effected by
similar methods. We are told that we cannot effect revolutionary changes
through peaceful methods, through negotiation and discussion in constituent
assemblies. We reply that we have similar ends; we wish to bring about
a fundamental alteration in the structure of Indian society. We wish to end
our political and economic dependence, but those who are strong of spirit,
those who are not short of sight, take their chances—they make their chances.
Here is a chance that is open to us and we wish to use this to find out
whether it will be possible for us to gain the revolutionary ends by methods
which are unusual so far as past history is concerned. We want to try
whether it will not be possible for us to effect a smooth and rapid transition
from a state of serfdom to one of freedom. That is the undertaking which
this particular Assembly has on hand. We wish to tell all those who are
abstaining from this Assembly that it is not our desire to establish any
sectional Government We are not here asking anything for a particular
community or a privileged class. We are here working for the establish¬
ment of Swaraj for all the Indian people. It will be our endeavour to
abolish every vestige of despotism, every heirloom of inorganic tradition.
We are here to bring about real satisfaction of the fundamental needs of
the common man of this country, irrespective of race, religion or commu¬
nity. If the trumpet gives an uncertain sound, we cannot rally the people
to our support It is therefore essential that our bugle-call, our trumpet-
sound, must be clear, must give the people a sense of exhilaration, must
give the suspicious and the abstaining a sense of reassurance that we are
here pledged to achieve full independence of India, where no individual
will suffer from undeserved want, where no group will be thwarted in the
development of its cultural life. Therefore I believe that a declaration of
objectives of this character is essential and it is not necessary for us to wait
till this Assembly is fuller than it happens to be at the present moment.
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THE OBJECTIVES RESOLUTION
13
Now let us turn to the objectives themselves. We resolve that India
shall be an Independent, Sovereign Republic. On the question erf indepen¬
dence there is no difference erf opinion. Premier Attlee, in his first state¬
ment, made on 15th March, said :
I hope that the Indian people may elect to remain within the British
Commonwealth. I am certain that die will find great advantages in doing
so; but if she does so elect, it must be by her own free will. The British
Commonwealth and Empire is not bound together by chains of external
compulsion. If, on the other hand, she elects for independence, in our
view she has a right to do so.
The Muslim League and the Princes have all agreed to it. In the
Memorandum on States’ Treaties and Paramountcy, presented by the Cabi¬
net Mission to the Chancellor of the Chamber of Princes on the 12th May,
1946, it is said that—
The Chamber has since confirmed that the Indian States fully share the
general desire in the country for the immediate attainment by India of
her full stature. His Majesty’s Government have now declared that, if
the Succession Government or Governments in British India desire
independence, no obstacle would be placed in their way. The effect of
these announcements is that all those concerned with the future of India
wish her to attain a position of independence within or without the British
Commonwealth.
AH those concerned with the future erf India, the Congress, the Muslim
League, and other organisations and the Princes also, they all desire inde¬
pendence for India within or without the British Commonwealth.
Mr. Churchill, in the House of Commons, referring to His Majesty’s
Government’s offer of independence, said on the 1st of July, 1946—
However, it is another matter when we try to short-circuit the process
and say Take independence now’. That is what the Government are
going to get and they are going to get it very soon, 'rhey should not
blind themselves to the idea. There is going to be no hesitation on the
part of those with whom the Government is dealing in taking full and
immediate independence. That is what is going to happen.
This Resolution on the objectives does not wish to disappoint
Mr. Churchill. (Hear, hear.) It tells him that the expected is happening.
You gave us the choice to get out of the British Commonwealth. We are
electing to go out of the British Commonwealth. May I say why ? So far
as India is concerned, it is not a mere Dominion like Australia, like New
Zealand or Canada or South Africa. These latter are bound to Great
Britain by ties of race, religion and culture. India has a vast population,
immense natural resources, a great cultural heritage and has had an inde¬
pendent career for a very long time, and it is inconceivable that India can
be a Dominion like the other Dominions.
Secondly, let us consider the implications of what happened at the United
Nations Organisation, when the Indian Delegation, headed by our
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FRAMING OF INDIA’S CONSTITUTION
distinguished colleague, Mrs. Vijayalakshmi Pandit, so ably defended the
rights of Indians in South Africa—look at the attitude that was adopted by
Great Britain. Great Britain along with Canada and Australia supported
South Africa, New Zealand abstaining from voting. It shows that there is a
community of ideals between Great Britain and the other Dominions in
which India has no share. There is no sense of belonging in the British Com¬
monwealth. We do not feel that we are all members, enjoying similar rights
as parts of the British Commonwealth. Some of you may also have heard
of the recent move launched by Mr. Churchill and Lord Templewood for a
European Union under the fostering care and leadership of Great Britain.
That also shows in what way the wind is blowing.
Yet, even though India may elect to quit the British Commonwealth,
there are a hundred different ways of voluntary co-operation, ways of mutual
collaboration, in trade, in defence, in matters of culture; but whether all
these forms of mutual co-operation are going to develop in a spirit of
friendship, trust and harmony, or whether they will be allowed to die out
in mutual distrust and recrimination, depends entirely cm the attitude which
Great Britain will adopt in this crisis. This Resolution about the Indian
Republic seems to have irritated Mr. Churchill and his followers. Our
Chairman today referred to one statement by Mr. Churchill and I will
refer to some others.
When the debate on Burma took place, Mr. Churchill stated that the
annexation of Burma happened during his father’s Secretaryship, and that
now Burma is given the liberty to get out of the British Commonwealth.
He seems to look upon Burma and India as parts of his ancestral estate,
and now when they are passing out, he seems to be terribly disheartened.
On the debate on India, he asked His Majesty’s Government to remem¬
ber its obligations “to the Muslims, numbering 90 millions, who comprised
the majority of the fighting elements of India”—truth is not rated high in
Indian debates and international intercourse—“and of untouchables of any¬
thing from 40 to 60 millions.” He refers to the representatives of the great
Congress Party as the mouthpiece “of actively organised and engineered
minorities who, having seized upon power by force, or fraud or chicanery,
go forward and use that power in the name of vast masses with whom they
have long since lost all effective connection.” A party of men who have
braved the perils of life, who have suffered for their patriotism, whose love
of country and capacity for sacrifice are second to none in the whole world,
who are led by one who is today leading a lonely trek in a far off corner
of India, bearing on his aging shoulders the burden of a nation’s shame
and sorrow, to talk of that party in the way in which Mr. Churchill has
done is—I do not know how to describe it. {Cries of shame.) Mr. Churchill’s
outbursts are bereft of dignity or discretion. Provocative and irrelevant
remarks, sneers of derision in regard to our communal division have punc¬
tuated his speech on that occasion and on other occasions. I shall only
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THE OBJECTIVES RESOLUTION
15
say here that such speeches and such statements cannot prevent the end
but can only postpone it and thus prolong the agony. The British connec¬
tion will end, it must end. Whether it ends in friendship and goodwill or
in convulsions and agony, depends upon the way in which the British people
treat this great problem.
Republic is a word which has disturbed some of the representatives of
the States in this country. We have said from this platform that a Republican
India does not mean the abolition of Princely rule. Princes may continue;
Princes will be there so long as they make themselves constitutional, so long
as they make themselves responsible to the people of the States. If the
great paramount power which is sovereign in this country by conquest, is
now transferring responsibility to the representatives of the people, it goes
without saying that those who depend on that paramount power should do
what the British have done. They must also transfer responsibility to the
representatives of the people.
We cannot say that the republican tradition is foreign to the genius of
this country. We have had it from the beginning of our history. When a
few merchants from the north went down to the south, one of the Princes
of Deccan asked the question, “Who is your King ?” The answer was, “Some
of us are governed by assemblies, some of us by kings.”
, Kecid deso ganadhina kecid rajadhina.
Panini, Megasthenes and Kautilya refer to the Republics of Ancient
India. The Great Buddha belonged to the Republic of Kapilavaslu.
Much has been said about the sovereignty of the people. We have
held that the ultimate sovereignty rests with the moral law, with the con¬
science of humanity. People as well as kings are subordinate to that.
Dharma, righteousness, is the king of kings.
Dharmam kshatrasya kshatram.
It is the ruler of both the people and the rulers themselves. It is the
sovereignty of the law which we have asserted. The Princes—I count many
of them amongst my personal friends—have agreed with the Cabinet State¬
ment and wished to take their share in the future development of this
country, and I do hope that they will realise that it is their duty to take
notice of the surging hopes of their peoples and make themselves responsible.
If they do so, they will play a notable part in the shaping of our country.
We have no ill-will towards the Princes. The assertion of republicanism,
the assertion of the sovereignty of the people, do not in any manner indicate
any antagonism to the Princely rule itself. They do not refer to the present
facts or past history of the Indian States but they indicate the future aspira¬
tions of the peoples of the States.
The next thing that we find in this Resolution is about the Union of
India. The Cabinet Statement has ruled out the partition of India.
Geography is against it. Military strategy is against it. The aspirations
of Hindus, Muslims and Sikhs from the very beginning have been against
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FRAMING OF INDIA’S CONSTITUTION
it. The present tendency is for larger and larger aggregations. Look at
what has happened in America, in Canada and Switzerland. Egypt wishes
to be connected with Sudan, South Ireland wishes to be connected with
North Ireland. Palestine is protesting against any division. Again national¬
ism, not religion, is the basis of modem life. Allenby’s liberating campaigns
in Egypt, Lawrence’s adventures in Arabia, Kemal Pasha’s defiant creation
of a secular Turkey, point out that the days of religious States are over.
These are the days of nationalism. The Hindus and Muslims have lived
together in this country for over a thousand years. They belong to the
same land, speak the same language. They have the same racial ancestry.
They have a common destiny to work for. They interpenetrate one another.
It is not a kind of Ulster, which we can separate; but our Ulster is a
ubiquitous one. Even if we have two States, there will be large minorities
and these minorities, whether really oppressed or not, will look across their
frontiers and ask for protection. This will be a source of continual strife
which will go on. as long as we do not have a United India. We realise
that while a strong Centre is essential to mould all the peoples into one
united whole, on account of the grievances, real or imaginary, we have to
be satisfied with a Centre which is limited to the three subjects which the
Cabinet Plan has put before us. Therefore, we are proceeding on the
principle of Provincial Autonomy, with the residuary powers to the Provinces
themselves. Events that have happened in Bihar and Bengal, tell us that
there is an urgent need for a strong Centre. Yet as there are these difficul¬
ties. we propose to develop a multi-national State which will give
adequate scope for the play of variations among the different cultures
themselves.
Grouping has given us a lot of trouble. But grouping is subject to two
essential factors—which are the integral parts of the Cabinet Plan—a Union
Centre and residuary powers in the Provinces; and in these Groups also
we will have large minorities. Those who are insistent on the rights of
minorities will have to concede these rights to others who happen to be in¬
cluded in the Groups. In a statement made by Sir Stafford Cripps on July
18. 1946, he said :
A fear was expressed that somehow or other the new Provincial Constitu¬
tions might be so manoeuvred as to make it impossible for the Provinces
afterwards to opt out. I do not myself see how such a thing would be
possible, but if anything of that kind were to be attempted, it would be
a dear breach of the basic understanding of this Scheme.
That is what Sir Stafford Cripps said. If any attempt is made to so
manipulate electorates as to make it difficult for the Provinces to opt out,
then that would be, in the words of Sir Stafford Cripps, “a clear breach
of the basic understanding of this Scheme”. After all we have to live together
and it is impossible to impose any constitution against the wishes of the
people who are to be governed by that Constitution.
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THE OBJECTIVES RESOLUTION
17
There is also a reference to fundamental rights in this Resolution. It
is a socio-economic revolution that we are attempting to bring about It is
therefore necessary that we must re-make the material conditions; but apart
from re-making die material conditions, we have to safeguard the liberty
of the human spirit. It is no good creating conditions of freedom without
producing a sense of freedom. The mind of man must have full liberty
to flower and mature and to grow to its fullest stature. The progress of
man is due to the play of his mind, now creating, now destroying, always
transmuting. We must safeguard the liberty of the human spirit against the
encroachments of the State. While State regulation is necessary to improve
economic conditions, it should not be done at the expense of the human spirit.
We are actors today in a great historical drama. We are involved in it
and therefore we are unable to perceive the large contours of it. This decla¬
ration, which we make today, is of the nature of a pledge to our own people
and a pact with the civilized world.
The question was put by Mr. Churchill to Mr. Alexander whether this
Assembly is functioning validly. Mr. Alexander said :
1 repeat the scheme for elections for the Constituent Assembly was carried
out. If the Muslim League abstained from going there, how can you prevent
a duly elected Assembly from going on to do its business?
That is what Mr. Alexander said. There was some difficulty about the
interpretation of the grouping. Much against its will, the Congress has
accepted His Majesty’s Government’s interpretation. The only two clauses
that remain are adequate safeguards for minorities, and a treaty on the
problems which arise out of transfer of power. The Constituent Assembly
is legally functioning. Every part of the State Paper has been completely
accepted and if we are able to frame adequate safeguards for minorities,
safeguards which will satisfy not so much the British or our own people,
but the civilized conscience of the world, then while yet the British have
the power to put it into action, they must give this Constitution the force
of law. It is essential that they should do so. If after all these conditions
are satisfied, if some excuse is invented for postponing the independence
of India, it would be the most callous betrayal of history. If, on the other
hand, the British argue that the Constituent Assembly has started func¬
tioning on the basis of the Cabinet Plan and they have accepted every clause
of the State Paper of May 16, and have provided adequate safeguards for
all minorities and therefore they should implement it, then it will be an
achievement of history which will secure the co-operation and goodwill of
two great peoples.
In that very speech which Mr. Attlee made as the Prime Minister on
March 15th, he said :
In the mass of Asia, an Asia ravaged by war, we have here the one country
that has been seeking to apply the principles of democracy. I have always
felt myself that political India might be the light of Asia...
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FRAMING OF INDIA’S CONSTITUTION
nay, the light of the world, giving to its distracted mind an integral vision
and to its bewildered will an upward direction.
Here are the two alternatives. Accept the Constituent Asembly. Take
its findings. Find out whether there are adequate safeguards for minorities
or not. If they are there, give them the force of law and you may get co¬
operation. If, after all these conditions are fulfilled, you still try to make
out that something is lacking, the British will be understood as violatin g
the spirit of the whole State Paper, and the dark possibilities which will
lie ahead of us in the present world conditions, I do not wish to contemplate.
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PART TWO
FUNDAMENTAL RIGHTS
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2
PRELIMINARY NOTES ON FUNDAMENTAL RIGHTS
September-December 1946
[In September 1946 , when the question of summoning the Assembly
at an early date was being discussed . the Constitutional Adviser . B. N.
Rau, issued two notes on the subject of fundamental rights for the use
of the members of the Assembly. The notes outlined the nature of
the problem and analysed the scope of various rights as embodied in
the constitutions of some of the more important countries of the world.
Later , in December , K. T. Shah also sent to the President of the
Assembly a comprehensive note on the subject. Shah's note included
a draft of as many as fifty-nine clauses on fundamental rights of citizens
and minorities. The texts of the notes are reproduced below.]
(I) NOTES ON FUNDAMENTAL RIGHTS BY B. N. RAU
September 2, 1946
I
Onb of the earliest tasks of the Constituent Assembly that is to frame the
Constitution of the future Indian Union will be to set up an Advisory Com*
mittee “on the rights of citizens, minorities, and tribal and excluded areas”.
A committee with such multifarious functions will doubtless find it necessary
to split up into at least four sub-committees corresponding to the four
branches of its work, and one of these sub-committees will have to deal with
the subject of citizens’ rights. This is a subject with a long history going
back to Magna Carta and perhaps earlier, into the details of which it is
unnecessary to enter here. It is sufficient for our present purpose to explain
the nature of the problem and to indicate how it has been sought to be
solved in other countries.
The constitutions of a great many countries contain an imposing array
of such rights, sometimes described as “fundamental rights”. Reference is
invited in this connection (1) to Amendments I-X, XIII-XV and XIX to
the Constitution of the U.S.A., (2) to Articles 4, 31, 44, 45, 49, 50, 55-58,
60 and 65 of the Swiss Constitution, (3) to Articles 109-160 of the German
Constitution of 1919, (4) to Articles 118-128 of the Constitution of the
3
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U.S.S.R., (5) to Articles 40-44 of the Constitution of Ireland (printed in the
Second Series of Constitutional Precedents). England has no written con¬
stitution, but the great Charters, Magna Carta, the Petition of Rights and
the Bill of Rights form part of the constitution. Broadly speaking, the rights
declared in these Constitutions relate to equality before the law, freedom
of speech, freedom of the press, freedom of religion, freedom of assembly,
freedom of association, security of person and security of property. Within
limits these are all well-recognised rights and it may be useful to draw atten¬
tion to them by embodying them in the Constitutional Charter. The difficulty
is in defining the precise limits in each case and in devising effective
protection for the rights so limited. Some of the constitutions have attempted
to define the limits of some of these rights and in doing so have gone far
towards destroying them. As an example, we may take Article 153 of the
German Constitution of 1919, which runs :
Property is guaranteed by the Constitution. Its extent and the restrictions
placed upon it are defined by law.
Expropriation may be effected only for the benefit of the general community
and upon the basis of law. It shall be accompanied by due compensation
save in so far as may be otherwise provided by a law of the Reich.
In other words, rights of private property are said to be inviolable except
where the law otherwise provides, which means that the rights are not
inviolable. Similarly, Article 115 provides : “The residence of every German
is an inviolable sanctuary for him; exceptions are admissible only in virtue
of laws”. The fact of the matter is that while these rights can be enunciated
in broad terms, it is not possible to enumerate in advance every possible
exception; the framers of the constitution, therefore, leave the exceptions
to be put in from time to time by the ordinary Legislature. The
result is that there is no constitutional guarantee against an oppressive
Legislature.
The other difficulty, namely, that of devising effective protection for the
rights defined, really arises out of the difficulty of definition already pointed
out. Where a right can only be indicated in broad terms, there is an obvious
risk in allowing it to be enforced in the ordinary courts, because there is
no knowing how broadly they might interpret it. There are at least three
alternatives possible in this connection : (1) to take this risk and allow the
rights, however imperfectly defined, to be enforced in the ordinary courts;
(2) to set out the rights merely as moral precepts for the authorities
concerned and to bar the jurisdiction of the ordinary courts either expressly or
by implication; (3) to allow the more easily definable rights to be enforced
in the ordinary courts and keep the rest out of their purview.
The difficulties of the problem are best elucidated by a few concrete cases.
Let us take one of the most frequently enumerated of these rights, that of
equality before the law ; and let us take a country where the rights are
enforceable by the courts : the United States of America. The Fourteenth
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23
Amendment to the Constitution of the U.S.A., which came into operation
in 1868, puts it in the form that no State shall “deny to any person within
its jurisdiction the equal protection of the laws”. Obviously, these words
are not to be taken too literally; otherwise, they would render invalid even
a State law granting special protection to women or children, as distinguished
from other inhabitants, e.g., a law that exempted children under the age
of seven from all criminal liability. And so it has been held by the
Supreme Court that the mere fact that a law applies to a particular class
of inhabitants and not to other classes is not sufficient to invalidate it.
But even within the same main class, does the Fourteenth Amendment require
absolute equality?
In Radice v. New York, a case decided in 1924 [264 U.S. 292], the
Supreme Court was called upon to decide whether a New York law which
prohibited the employment of certain classes of women in restaurants of
certain classes of cities between 10 p. m. and 6 a. m. was valid or not.
The law, it will be noticed, not only did not apply to male employees,
but did not even apply equally to all classes of women employees; accord¬
ingly it was attacked as a breach of the Fourteenth Amendment. Never¬
theless, the Court held that there was no breach. The Legislature can
select special classes or sub-classes for special treatment, provided that the
classification is not arbitrary, oppressive, or capricious and, of course, the
Court is to decide whether it is so or not in any given case.
But the Court has not found this task easy. In 1902, in Connolly v.
Union Sewer Pipe Company [184 U.S. 540] an anti-Trust statute of Illinois
of 1893 came under scrutiny. The statute made trusts or combinations for
certain specified purposes a criminal offence, but added that its provisions
did not apply to agricultural products or live-stock in the hands of the
producer or raiser. It was argued against this statute that the exemption
of agriculturists and stockmen was repugnant to the “equal protection” clause
and therefore that the entire statute was invalid. The Supreme Court in
accepting both these contentions observed:
If combinations of capital, skill, or acts, in respect of the sale or purchase
of goods, merchandise, or commodities, whereby such combinations may,
for their benefit exclusively, control or establish prices are hurtful to the
public interests and should be suppressed, it is impossible to perceive why
like combinations in respect of agricultural products and live-stock are
not also hurtful. Two or more engaged in selling dry goods, or groceries,
or meats, or fuel, or clothing, or medicines,' are, under the statute,
criminals, and subject to a fine, if they combine their capital, skill, or acts
for the purpose of establishing, controlling, increasing, or reducing prices,
or of preventing free and unrestrained competition amongst them¬
selves or others in the sale of their goods or merchandise; but their
neighbours, who happen to be agriculturists and live-stock raisers, may
make combinations of that character in reference to their grain or live-stock
without incurring the prescribed penalty. Under what rule of
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FRAMING OF INDIANS CONSTITUTION
permissible classification can such legislation be sustained as consistent with
the equal protection of the laws? . . .
We conclude this part of the discussion by saying that to declare that
some of the class engaged in domestic trade or commerce shall be deemed
criminals if they violate the regulations prescribed by the state for the
purpose of protecting the public against illegal combinations formed to
destroy competition and to control prices, and that others of the same
class shall not be bound to regard those regulations, but may combine
their capital, skill, or acts to destroy competition and to control prices for
their special benefit, is so manifestly a denial of the equal protection
of the laws that further or extended argument to establish that position
would seem to be unnecessary. [184 U.S. 564.]
Nearly forty years later, in 1940, in Tigner v. Texas [310 U.S. 141] an
anti-Trust law of Texas of a similar character and containing a similar
exemption in favour of agricultural products and live-stock again came
before the Supreme Court. This time, the Court upheld the law, observing:
The equality at which the 'equal protection* clause aims is not a disembodi¬
ed equality. The Fourteenth Amendment enjoins 'the equal protection of
the laws', and laws are not abstract propositions. They do not relate to
abstract units A, B and C, but are expressions of policy arising out of
specific difficulties, addressed to the attainment of specific ends by the
use of specific remedies. The Constitution does not require things which
are different in fact or opinion to be treated in law as though they were
the same. And so we conclude that to write into law the differences
between agriculture and other economic pursuits was within the power
of the Texas legislature. Connolly’s case has been worn away by the
erosion of time and we are of opinion that it is no longer controlling.
If the above qualification were incorporated in the Fourteenth Amend¬
ment, the “equal protection” clause would be diluted into the mild injunc¬
tion that the State shall treat as equal in law only those persons within its
jurisdiction who are equal in fact. It is, of course, for the Courts to
judge whether persons are equal in fact; but, we may add, the same classes
of persons that appeared to the Courts in 1902 to be manifestly equal
in fact were found in 1940 to be, in truth, unequal. The protection offered
by the clause has thus worn very thin. Indeed, even a Nazi State might
have accepted it on its present interpretation, for its Courts could be trusted
to rule : “A Jew is not equal to an Aryan in fact and there is therefore no
ground for treating him as equal in law”. Needless to say, the Supreme
Court of the United States has a higher conception of the dignity of man,
and the constitutional protection, though “worn away by the erosion of
time” in certain other spheres, is still potent in the racial. In Missouri
v. Gdnes 9 a case decided in 1938 [350 U.S. 337], a negro named Lloyd
Gaines, who had been refused admission to the School of Law of the State
University of Missouri, sought to compel the University authorities to admit
him upon the strength of the “equal protection” clause in the Constitution.
The matter, after going through various Courts in the State, ultimately came
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25
before the Supreme Court of the United States; the following extracts from
the judgment give the full facts of the case and show the view taken by
the majority:
Petitioner is a citizen of Missouri. In August, 1935, he was graduated with
the degree of Bachelor of Arts at the Lincoln University, an institution
maintained by the State of Missouri for the higher education of negroes.
That University has no law school. Upon the filing of his application for
admission to the law school of the University of Missouri, the registrar
advised him to communicate with the president of Lincoln University and
the latter directed petitioner’s attention to Section 9622 of the Revised
Statutes of Missouri (1929), Mo. St. Ann. § 9622, p. 7328, providing as
follows :
§9622. May arrange for attendance at university of any adjacent state —
tuition fees —Pending the full development of the Lincoln University,
the board of curators shall have the authority to arrange for the
attendance of negro residents of the State of Missouri at the university
of any adjacent State to take any course or to study any subjects
provided for at the State university of Missouri, and which are not
taught at the Lincoln University and to pay the reasonable tuition fees
for such attendance: provided that whenever the board of curators
deem it advisable they shall have the power to open any necessary
school or department. (Laws 1921, p. 86. §7.)
Petitioner was advised to apply to the State Superintendent of Schools
for aid under that statute. It was admitted on the trial that petitioner’s
‘work and credits at the Lincoln University would qualify him for admission
to the School of Law of the University of Missouri if he were found otherwise
eligible’. He was refused admission upon the ground that it was ‘contrary
to the constitution, laws and public policy of the State to admit a negro
as a student in the University of Missouri’. It appears that there are schools
of law in connection with the State universities of four adjacent States,
Kansas, Nebraska, Iowa and Illinois, where non-resident negroes are
admitted.
• • *
In answering petitioner’s contention that this discrimination constituted a
denial of his constitutional right, the state court has fully recognized the
obligation of the State to provide negroes with advantages for higher
education substantially equal to the advantages afforded to white students.
The State has sought to fulfil that obligation by furnishing equal facilities
in separate schools, a method the validity of which has been sustained by
our decisions.
But the fact remains that instruction in law for negroes is not now
afforded by the State, either at Lincoln University or elsewhere within the
State, and that the State excludes negroes from the advantages of the law
school it has established at the University of Missouri.
♦ * •
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FRAMING OF INDIA'S CONSTITUTION
The State court stresses the advantages that are afforded by the law schools
of the adjacent States, Kansas, Nebraska, Iowa, and Illinois which admit
non-resident negroes. The court considered that these were schools of
high standing where one desiring to practise law in Missouri can get 'as
sound, comprehensive, valuable legal education' as in the University of
Missouri; that the system of education in the former is the same as that
in the latter and is designed to give the students a basis for the practice
of law in any State where the Anglo-American system of law obtains;
that the law school of the University of Missouri does not specialize in
Missouri law and that the course of study and the case books used in the
five schools are substantially identical. Petitioner insists that for one
intending to practise in Missouri there are special advantages in attending
a law school there, both in relation to the opportunities for the particular
study of Missouri law and for the observation of the local courts, and
also in view of the prestige of the Missouri law school among the citizens
of the State, his prospective clients. Proceeding with its examination of
relative advantages, the State court found that the difference in distances
to be travelled afforded no substantial ground of complaint and that there
was an adequate appropriation to meet the full tuition fees which petitioner
would have to pay.
We think that these matters are beside the point The basic consideration
is not as to what sort of opportunities other States provide, or whether
they are as good as those in Missouri, but as to what opportunities Missouri
itself furnishes to white students and denies to negroes solely upon the
ground of color. The admissibility of laws separating the races in the
enjoyment of privileges afforded by the State rests wholly upon the
equality of the privileges which the laws give to the separated groups within
the State. The question here is not of a duty of the State to supply legal
training, or of the quality of the training which it does supply, but of its
duty when it provides such training to furnish it to the residents of the
State upon the basis of an equality of right. By the operation of the
laws of Missouri a privilege has been created for white law students which
is denied to negroes by reason of their race. The white resident is afforded
legal education within the State, the negro resident having the same qualifi¬
cations is refused it there and must go outside the State to obtain it. That
is a denial of the equality of legal right to the enjoyment of the privilege
which the State has set up, and the provision for the payment of tuition
fees in another State does not remove the discrimination.
* * *
Nor can we regard the fact that there is but a limited demand in Missouri
for the legal education of negroes as excusing the discrimination in favour
of whites. We had occasion to consider a cognate question in the case of
McCabe v. Atchison, Topeka and Santa Fe Railway Co ., supra . There
the argument was advanced, in relation to the provision by a carrier of
sleeping cars, dining and chair cars, that the limited demand by negroes
justified the State in permitting the furnishing of such accommodations
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PRELIMINARY NOTES ON FUNDAMENTAL RIGHTS
27
exclusively for white persons. We found that argument to be without merit.
It made, we said the constitutional right ‘depend upon the number of
persons who may be discriminated against, whereas the essence of the
constitutional right is that it is a personal one. Whether or not particular
facilities shall be provided may doubtless be conditioned upon there being
a reasonable demand therefor; but, if facilities are provided, substantial
equality of treatment of persons travelling under like conditions cannot be
refused. It is the individual who is entitled to the equal protection of the
laws, and if he is denied by a common carrier, acting in the matter under
the authority of a state law, a facility or convenience in the course of his
journey which, under substantially the same circumstances, is furnished to
another traveller, he may properly complain that his constitutional privilege
has been invaded.* Id., 235 U.S. pages 161, 162, 35 S. CL page 71.
Here, petitioner's right was a personal one. It was as an individual that
lie was entitled to the equal protection of the laws, and the State was
l>ound to furnish him within its borders facilities for legal education
substantially equal to those which the State there afforded for persons of
the white race, whether or not other negroes sought the same opportunity.
It is urged, however, that the provision for tuition outside the State is a
temporary one,—that it is intended to operate merely pending the establish¬
ment of a law department for negroes at Lincoln University. While in
that sense the discrimination may be termed temporary, it may nevertheless
continue for an indefinite period by reason of the discretion given to the
curators of Lincoln University and the alternative of arranging for tuition
in other States, as permitted by the State law as construed by the State
court, so long as the curators find it unnecessary and impracticable to
provide facilities for the legal instruction of negroes within the State. In
that view, we cannot regard the discrimination as excused by what is called
its temporary character.
* * *
The judgment of the Supreme Court of Missouri is reversed and the case
is remanded for further proceedings not inconsistent with this opinion.
The importance of this judgment is enhanced by the fact that apart from
the clause about equal protection of the laws in the Fourteenth Amend¬
ment, the U.S.A. Constitution does not expressly provide for equality of
educational opportunities for all citizens, irrespective of race. The express
provision contained in the Fifteenth Amendment is limited to the franchise:
“The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude”. In this respect, the Constitution of the
U.S.S.R. is more liberal, because under Article 123, “Equality of rights of
citizens of the U.S.S.R., irrespective of their nationality or race, in all
spheres of economic, state, cultural, social and political life, is an inde¬
feasible law. Any direct or indirect restriction of the rights erf, or, con¬
versely, any establishment of direct or indirect privileges for, citizens on
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FRAMING OF INDIA’S CONSTITUTION
account of their race or nationality, as well as any advocacy of racial
or national exclusiveness or hatred and contempt, is punishable by law".
But the Supreme Court of the U.S.S.R. has no power to disallow laws
and acts which contravene the rights declared. The Presidium of the
Supreme Soviet—which is a sort of joint Standing Committee of the Cham¬
bers of the Supreme Soviet (the Union Parliament)—interprets the laws of
the U.S.S.R. and annuls decisions and orders of the Governments of the
Union and of the Constituent Republics in case they do not conform to
law. [Article 49 of the Constitution of the U.S.S.R.]
The following account, taken from the New York Times , of a very recent
American case is of interest in this connection :
The U.S. Supreme Court held on June 3rd (1946) by a six-to-one decision
announced by Justice Stanley F. Reed that racial segregation of bus
passengers, as authorized by law in 10 States (called ‘Jim Crowism’ after
a negro character in an old negro folk song), was unconstitutional on
buses crossing State borders. The Court dealt with the case of Irene
Morgan, a negro girl, who, when travelling in a bus going from Virginia
to Maryland, had been arrested and fined 10 dollars for refusing to change
her seat and sit in the rear marked Tor Coloured Patrons’ (as is general
in trolley cars, buses, and trains in the South), thus violating the Virginia
Tim Crowism’ statute. The Virginia Supreme Court of Appeal upheld the
conviction, and in the hearing before the Supreme Court the State of
Virginia defended the segregation law as "recognition of human nature’
arguing that it prevented racial clashes that might endanger public safety.
The Supreme Court decided, however, that, there being no Federal Act
dealing with the separation of races in inter-State transportation, the
Virginian Statute interfered with the freedom of inter-State commerce which
required "uniformity’ in the seating arrangements for the different races
in inter-State travel, and for this reason was unconstitutional.
It has already been pointed out that the “equal protection” clause, as
interpreted by the Supreme Court, does not prevent special legislation for
special classes provided the classification is not arbitrary. It has also been
pointed out that the task of deciding whether the clause, in a given case,
is arbitrary or not is not easy. An illustration of this difficulty has already
been given in the matter of anti-Trust laws; a few others in the sphere of
taxation may now be mentioned. In 1935, in the case Stewart Dry Goods
Co . v. Lewis [294 U.S. 550] the Supreme Court held invalid a Kentucky
law imposing a graduated tax upon annual gross sales of retail merchants
ranging from 1/20 per cent, upon the first $ 400,000 of gross sales to 1
per cent, on sales over $ 1,000,000. In the language of the court, ‘‘The
law arbitrarily classifies these vendors for the imposition of a varying rate
of taxation, solely by reference to the volume of their transactions, dis¬
regarding the absence of any reasonable relation between the chosen criterion
of classification and the privilege the enjoyment of which is said to be
the subject taxed."
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29
But in the previous year (1934), in Fox v. Standard Oil Co. of New Jersey
[294 U.S. 87], the court had, by a majority of 5 to 4, upheld a West Vir¬
ginia graduated tax running from S 2 for one store to $ 250 for each store
in excess of 75, saying that a series of gasoline stations maintained in a single
ownership has the benefit of chain organization and that therefore the
graduation of the tax according to the number of stores owned was not
arbitrary. Again, in 1940, in Madden v. Kentucky [309 U.S. 83] the court,
with two dissentient Judges, upheld a Kentucky statute imposing on its
citizens an annual ad valorem tax on their deposits in banks outside the
State at the rate of 50 cents per 100 dollars and on their deposits in banks
within the State at the rate of 10 cents per 100 dollars. This had been
attacked on the ground, among others, that it discriminated between those
who deposited their money in Kentucky banks and those who deposited
their money in banks outside Kentucky and thus offended against the M equal
protection” clause. The court observed (1) that in taxation, even more
than in other fields, the legislature possesses the greatest freedom in classi¬
fication, (2) that the presumption of validity attaching to legislation can be
overcome only by the most explicit proof that the classification adopted by
the legislature was “a hostile and oppressive discrimination against particular
persons and classes”, and (3) that in this case the treatment accorded to
the two kinds of deposits may have resulted from the differences in the
difficulties and expenses of tax collection.
We may now turn to another of the fundamental rights enunciated in the
Constitution of the U.S.A. In the Fifth Amendment, which applies to the
Centre, it is declared that no person shall be deprived of life, liberty or
property without due process of law; and in the Fourteenth Amendment,
there is a similar declaration applying to the States: “Nor shall any State
deprive any person of life, liberty or property without due process of law”.
A vast volume of case law has gathered round this “due process” clause,
of which it has been said that it is “the most important single basis of
judicial review today”. At first it was regarded only as a limitation on
procedure and not on the substance of legislation; but it has now been
settled that it applies to matters of substantive law as well. In fact, the
phrase “without due process of law” appears to have become synonymous
with “without just cause”, the court being the judge of what is “just cause”;
and since the object of most legislation is to promote the public welfare
by restraining and regulating individual rights of liberty and property, the
court can be invited, under this clause, to review almost any law. The
court has upheld laws providing for compulsory vaccination (1905); for
compulsory sterilization of mental defectives (1927); for commitment of
persons with a “psychopathic personality” (1940); but not a law forbidding
the use of shoddy in the manufacture of mattresses (1926), nor one requir¬
ing every pharmacy to be owned by a licensed pharmacist (1928). The usual
issue in such cases is whether what is called the “police power” of the State—
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FRAMING OF INDIA'S CONSTITUTION
in other words, the inherent power of every State “to prescribe regulations
to promote the health, peace, morals, education and good order of the
people” justifies the particular law under consideration. Since there is no
certain criterion in these matters, the court’s verdict may vary from time
to time. Thus in Lochner v. New York [1905, 198 U.S. 45], a New York
law forbidding more than 60 hours’ work in any week or an average of more
than 10 hours per day in bakeries or confectioneries was held unconstitutional
as infringing the liberty of the individual without due process of law:
The question whether this act is valid as a labor law, pure and simple,
may be dismissed in a few words. There is no reasonable ground for inter¬
fering with the liberty of person or the right of free contract, by deter¬
mining the hours of labor, in the occupation of a baker. There is no
contention that bakers as a class are not equal in intelligence and capacity
to men in other trades or manual occupations, or that they are not able to
assert their rights and care for themselves without the protecting arm of the
State, interfering with their independence of judgment and of action. They
are in no sense wards of the State. Viewed in the light of a purely labor
law, with no reference whatever to the question of health, we think that
a law like the one before us involves neither the safety, the morals, nor
the welfare, of the public, and that the interest of the public is not in the
slightest degree affected by such an act. The law must be upheld, if at all,
as a law pertaining to the health of the individual engaged in the occupation
of a baker. It does not affect any other portion of the public than those
who are engaged in that occupation. Clean and wholesome bread does not
depend upon whether the baker works but ten hours per day or only
sixty hours a week. The limitation of the hours of labor does not come
within the police power on that ground.
But twelve years later, in Bunting v. Oregon [243 U.S. 426], the court,
without mentioning the Lochner case, upheld a ten-hour law for factories.
Again, in 1923 in Adkins v. Children's Hospital [261 U.S. 525], the court by
a narrow majority overthrew an Act of Congress prescribing a minimum
wage for women and children in the district of Columbia. But in 1937, in
West Coast Hotel Co, v. Parrish , the court, by a bare majority (5 to 4),
overruled the Adkins case and upheld a Washington Act authorizing the
fixing of minimum wages for women and minors. There has been similar
oscillation in regard to laws providing for price-control and Dodd’s comment
on this line of cases is:
The question is one as to the efficient action of the government, while at
the same time protecting the essential rights of the individual. The cases
printed below will indicate that the court has wavered from one position
to another, and may now be wavering back to its earlier position.
We are now in a position to realise some of the difficulties of the problem
of fundamental rights. To enunciate them in general terms and to leave
it to the courts to enforce them will have the following consequences: (1)
The Legislatures not being in a position to know what view the courts
will take of a particular enactment, the process of legislation will become
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PRELIMINARY NOTES ON FUNDAMENTAL RIGHTS
31
difficult, (2) There will be a vast mass of litigation about the validity of
laws and the same law that was held valid at one time may be held invalid
at another or vice versa; the law will therefore become uncertain, (3) The
Courts, manned by an irremovable judiciary not so sensitive to public needs
in the social or economic sphere as the representatives of a periodically-
elected legislative body, will, in effect, have a veto on legislation exercisable
at any time and at the instance of any litigant.
As against these disadvantages and compensating for them, there will
undoubtedly be the advantage that racial and religious minorities will feel
some security. Many European Constitutions contain a declaration of fun¬
damental rights, but there is often no Court with power to pronounce an
offending law unconstitutional. Even in Switzerland, where the Federal
Court is competent to entertain complaints of violation of the constitutional
rights of citizens, the Constitution requires the Court to apply the laws
passed by the Federal Assembly. [See Article 113 of the Swiss Constitution.]
The difference between the Supreme Court of the United States and the
Swiss Federal Court in this respect is explained thus by Adams and
Cunningham :
Every Judge of the Supreme Court of the United States is bound to treat
as void all legislative Acts, whether proceeding from Congress or from
the State legislatures, which are inconsistent with the Federal Constitution,
or are in excess of the legislative powers which that Constitution confers.
The Supreme Court only inquires into the validity of Acts of Congress
for the purpose of determining a question brought before it in a legal
proceeding.
The Federal Tribunal, on the contrary, cannot inquire into the constitu¬
tional character of a law or a resolution of a general nature which has
been adopted by the Federal Assembly, any more than of a treaty ratified
by that body. It is bound by the Constitution to accept those laws and
resolutions and to apply them to the cases submitted to its judgment.
The reason is clear. The measures which, after being framed by the
Federal Council and adopted by the Federal Assembly, are accepted by
the people, either tacitly or through the Referendum, thus obtain the
sanction of the Swiss people. Hence the Federal Tribunal must bow to the
decision of the people, and regard all such measures as constitutional and
inviolable. [The Swiss Confederation by Adams and Cunningham, 1889,
pp. 267, 268.]
The Swiss Federal Court can, however, examine the constitutionality of
cantonal laws .
The Irish Constitution of 1937 has followed the plan of separating “fun¬
damental rights” from “directive principles of social policy”; the former
are, to some extent, enforceable by the courts, but the latter not at all.
The former are set out in Articles 40-44 of the Constitution and the latter
in Article 45, which begins thus: “The principles of social policy set forth
in this article are intended for the general guidance of the Oireachtas (the
Irish Parliament). The application of those principles in the making of
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FRAMING OF INDIA’S CONSTITUTION
laws shall be the care of the Oireachtas exclusively, and shall not be cogni¬
zable by any Court under any of the provisions of tkis Constitution”. There
is no similar provision in Articles 40-44 expressly excluding the jurisdiction
of the Courts. Some of the fundamental rights appear to be couched in
terms which could be enforced by the Courts : e.g., section 40(6)2° provides
that laws regulating the manner in which the right of forming associations
and unions and the right of free assembly may be exercised shall contain
no political, religious or class discrimination; section 44(2)4° prescribes
that legislation providing State aid for schools shall not discriminate between
schools under the management of different religious denominations ; and so
forth. Laws contravening these guarantees will doubtless be pronounced
ultra vires.
But a provision such as “No citizen shall be deprived of his personal
liberty save in accordance with law" occurring in section 40(4)1° cannot
invalidate any law and is really meaningless as a guarantee against oppres¬
sive laws after enactment. Possibly it has a moral value and may afford
ground for a referendum before the Bill becomes law, for under Article
27, Bills may be referred to the people, if they involve proposals of national
importance. There is also a provision in Article 26(1)1° enabling the
President, after consulting the Council of State (which is a sort of Privy
Council), to refer any Bill to which the Article applies to the Supreme Court
for a decision whether the Bill or any specified provision thereof is
unconstitutional.
In the Austrian Constitution of 1920, certain fundamental rights were
declared [e.g„ Article 7 declared “All citizens of the Federation shall be
equal before the law. Privileges of birth, sex, position, class and religion
are abolished.”] and there was also provision for a Constitutional Court, in
addition to an Administrative Court and the ordinary Courts of Law. The
ordinary Courts were not to inquire into the validity of any duly promulgated
law [Article 89(1)], but the Constitutional Court was competent in certain
circumstances to decide all such questions and to annul any laws, which
it adjudged unconstitutional (Article 140); in addition, the Constitutional
Court was expressly given power to entertain complaints of violation, by
any administrative authority, of rights guaranteed under the Constitution
after the matter had been taken through all the stages of administrative
appeal [Article 144]. The net result of these provisions appears to have
been that the Constitutional Court could annul a law as unconstitutional
at the instance of the Federal Government or a Provincial Government (as
the case may be) and to annul any administrative decision as unconstitu¬
tional at the instance of any aggrieved individual. The Constitutional Court
consisted of a President, a Vice-President, and a number of other members;
the President, the Vice-President, and one half of the other members were
elected by the Lower House and the other half of the other members by
the Upper House of the Federal Legislature. They were to hold office for
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33
life. Further provisions as to the organisation and procedure of the Consti¬
tutional Court were to be prescribed by Federal legislation.
In the next Part an attempt will be made to analyse the fundamental rights
embodied in a few typical Constitutions and to suggest which of them may
be included in the new Indian Constitution and what form they should take.
n
We may now proceed to analyse the fundamental rights embodied in
the constitutions of some of the more important countries of the world and
to frame the draft of a Bill of Rights for incorporation in the* Indian Consti¬
tution. For this purpose, it is useful to recognise a distinction between two
broad classes of rights: there are certain rights which require positive action
4>y the State and which can be guaranteed only so far as such action is
practicable, while others merely require that the State shall abstain from
prejudicial action. Typical of the former is the right to work, which cannot
be guaranteed further than by requiring the State, in the language of the
Irish Constitution, “to direct its policy towards securing that the citizens
may, through their occupations, find the means of making reasonable pro¬
vision for their domestic needs”; typical of the latter is the right which
requires, in the language of the American Constitution, that “the State shall
not deprive any citizen of his liberty without due process of law”. It is
obvious that rights of the first type are not normally either capable of. or
suitable for, enforcement by legal action, while those of the second type
may be so enforced. Both classes of rights are mentioned together under
the head of “Fundamental Rights” in certain constitutions, e.g„ in the Con¬
stitution of the U.S.S.R. and in the Weimar Constitution of the German Reich,
possibly because neither was intended to be enforced by legal action. But
the distinction is clearly recognised (though not uniformly pursued) in the
Irish Constitution, which deals first with “fundamental rights” strictly so
called, and then with “directive principles of social policy”, the latter being
expressly excluded from the purview of the courts. A similar distinction
is recognised in Dr. Lauterpacht’s International Bill of the Rights of Man
(1945). The substantive provisions of the Bill are in two parts. Part I
dealing with rights meant to be enforced by the ordinary courts and Part II
dealing with rights incapable of or unsuitable for such enforcement. We
may usefully follow this plan and separate the two classes of rights ; Part
A may deal with fundamental principles of State policy and Part B with
fundamental rights strictly so called. The following draft is suggested for
Part A; it is meant to be illustrative rather than exhaustive:
PART A
The principles set forth in this Part are intended for the general guidance
of the appropriate Legislatures and Governments in India (hereinafter
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FRAMING OF INDIA’S CONSTITUTION
referred to collectively as ‘the State’). The application of these principles
in legislation and administration shall be the care of the State and
shall not be cognizable by any court
1. The State shall promote international peace and security by the eli¬
mination of war as an instrument of national policy, by the prescription
of open, just and honourable relations between nations, by the firm
establishment of the understandings of international law as the actual
rule of conduct among Governments and by the maintenance of justice
and the scrupulous respect for treaty obligations in the dealings of
organized people with one another.
2. The State shall promote internal peace and security by the elimination
of every cause of communal discord.
3. The State shall, as far as possible, secure to each citizen—
(1) the right to work,
(2) the right to education,
(3) the right to maintenance in old age and during sickness or loss
of capacity to work,
(4) the right to rest and leisure.
In particular, the State shall make provision for free and compulsory
primary education.
4. The State shall promote with special care the educational and economic
interests of the weaker sections of the people and, in particular, of the
Scheduled Castes and the aboriginal tribes, and shall protect them from
social injustice and all forms of exploitation.
5. The State shall protect the culture, language and script of the various
communities and linguistic areas in India.
6. The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health
as among its primary duties.
7. The State shall ensure that the strength and health of workers, men and
women, and the tender age of children shall not be abused and that
they shall not be forced by economic necessity to take up occupations
unsuited to their sex, age or strength.
It is obvious that none of the above provisions is suitable for enforcement
by the courts. They are really in the nature of moral precepts for the autho¬
rities of the State. Although it may be contended that the Constitution is
not the proper place for moral precepts, nevertheless constitutional declara¬
tions of policy of this kind are now becoming increasingly frequent. (See
the Introduction to the I. L. O. publication Constitutional Provisions con -
cerning Social and Economic Policy , Montreal, 1944.) They have at least
an educative value. The first clause is taken from the Declaration of Havana
made in 1939 by the representatives of the Govemihents, employers and work¬
people of the American Continent. The second, fourth and fifth clauses are
peculiarly needed in India. The third clause embodies certain objectives
of social and economic policy which are now widely recognized; see for
example. Articles 118-121 of the Constitution of the U.S.S.R. and Articles 42
and 45 of the Irish Constitution. The sixth clause relating to nutritional and
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35
other standards is taken from the recommendations of the United Nations
Conference on Food and Agriculture, 1943, and is of special importance to
India. The seventh clause is taken from Article 45(4)2° of the Irish Consti¬
tution, 1937.
PART B
We now come to the other Part, Part B, relating to fundamental rights
strictly so called, that is to say, rights which are meant to be enforced by
legal action. Here we enter upon controversial ground :
There are very few countries which have fully adopted the system of
judicial review enabling courts to act in that capacity in the matter of
the fundamental rights of the individual guaranteed by the constitution.
In the United States, by long-established practice—though not in pursuance
of any express provision of the Constitution—the Supreme Court has
exercised that power since its decision in the historic case of Marbury v.
Madison. This is also the position, by virtue of an express constitutional
provision, in Brazil, Venezuela, and some other Latin-American countries,
in Czechoslovakia, Rumania and the Irish Free State. In a number of
countries—such as Australia, Canada, and Germany (in the Constitution of
1919)—judicial review is limited largely to questions relating to the respective
legislative competence of the Federation and of the Member States.
On the other hand, in many States the constitution specifically excludes
the interpretation of laws—and a fortiori any declaration of their invali¬
dity—from the purview of the judiciary. Judicial review of legislation is
contrary to the constitutional doctrine of France, and above all, of Great
Britain, where the supremacy of Parliament is absolute. Although the
Constitution of Soviet Russia of 1923 gave (in Article VII. Sec. 43) the
Supreme Court of the Union the power to render decisions, at the request
of the Central Executive Committee of the Union, on the constitutionality
of any regulations made by the Republics of the Union, no such powers
have been conferred upon it by the Constitution of 1936...
The doctrine of judicial review has been defended with fervent approval
by great lawyers in the United States and elsewhere. Daniel Webster
and Francis Lieber praised it as a bulwark of liberty. Lord Bryce was of
the view that “there is no part of the American system which reflects more
credit on its authors or has worked better in practice”. Dicey was a strong
believer in the doctrine of the supremacy of Parliament in England. But
he was emphatic that it was “the glory of the founders of the United States”
—in fact the doctrine of judicial review was adopted a quarter of a century
after the foundation of the Republic—to have established a system of
protection of the Constitution essential to a federal system (actually, the
exercise of the power of judicial review by the Supreme Court has borne
little relation to the fact of the federal structure of the United States).
Tocqueville praised it as most favourable to liberty and to public order.
After one hundred and forty years of operation it has the unqualified
support of a large—perhaps predominant—section of American legal
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FRAMING OF INDIA’S CONSTITUTION
opinion as a bulwark of liberty of the people against the rashness and
the tyranny of short-lived legislative majorities.
On the other hand, the doctrine of judicial review has found from its very
inception violent opponents and detractors in the country of its origin.
Jefferson and Madison denounced it. Great teachers of constitutional law,
such as J. B. Thayer, have drawn attention to the dangers of attempting
to find in the Supreme Court—instead of in the lessons of experience—a
safeguard against the mistakes of the representatives of the people. That
criticism has grown in the last fifty years to the point of bitter denunciation
as the result of the exercise of the power of judicial review in a manner
which, in the view of many, has made the Supreme Court a defender of
vested rights and social statics. Some French jurists, who were attempting
to find a remedy for the absence of an effective guarantee of fundamental
rights in their own constitution, have come to regard the experience of
judicial review in the United States as a sufficient deterrent against
introducing judicial review in France. In countries other than the United
States, in which judicial review of legislation is recognized, it has been
exercised only in rare cases for the protection of the rights of the individual.
(Lauterpacht, An International Bill of the Rights of Man , 1945, pp. 186-190.)
In the peculiar circumstances of India, there may well be a demand for a
Bill of Rights enforceable in the courts. There is ample material available
for the preparation of such a Bill but its drafting will require great care and
must be reserved for a future occasion.
(n) A NOTE ON FUNDAMENTAL RIGHTS BY K. T. SHAH
December 23, 1946
The idea of defining and declaring the Rights of Man and of Citizen
is not a very recent contribution to political theory.
Since the days of the French Revolution, the notion of defining Rights
of Man and of Citizen has become an article of faith for liberalism. In
the American Constitution, which preceded by a few years the French Revo¬
lution, the Bill of Rights definitely lays down, as the object of the Constitu¬
tion, the protection or guarantee of life, liberty and pursuit of happiness
as the birth-right of all human beings. The British Revolution also, 100
years before it, insisted upon a Bill of Rights after, which may well be said
to have laid the foundation for a well defined and solemnly declared Code
of Human Rights and the Rights of Citizens.
The Bill of Rights, as conceived and formulated by the British and
American Revolutions, was, however, more in answer to the sufferings or
grievances of those people against their then Rulers than a formal declara¬
tion of abstract Rights. This does not mean, indeed, that these Rights of
Man must be considered only as remedies for specific wrongs. Even if
the experience of mankind shows there have been wrongs, the rights em¬
bodied in those documents are such essential claims of humanity that their
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37
declaration and enforcement must be deemed to be the primary function
of every civilized Government.
Until, however, these Rights came to be defined and made an integral
part of a country’s Constitution, they were in the nature of pious wishes of
progressive thinkers and liberal Government, rather than accepted obliga*
tions of the State towards the Citizens, and of civilized Society towards all
mankind. The conception of such Rights was unknown in ancient Greece
where Society was divided into free citizens and slaves who had no rights.
It was, moreover, confined within the limits of a single town and its adjoin*
ing territories, whore the idea of a Body of Rights solemnly declared and
made part of the Constitution, providing guarantees to the individual, be he
citizen or stranger, was unt hink able The idea made some advance under
Rome and her Empire. But even then formal definition in any decrees of
the Senate or of the Emperor was unknown. Roman citizenship itself was
of course a prized possession, carrying considerable privileges in the earlier
days of the Republic and even under the first Caesars. But in those days
Rome was conscious of her own separate individuality; and had evolved
a legal system suited to her own citizens. The distinction between the Roman
citizen and the rest of the subjects of Rome was a distinction between Romans
and others, which was certainly not the same thing as the recognition of
the Rights of Man as such.
So far as mere theory is concerned, it was therefore not until the estab¬
lishment and advancement of Christianity that the sacredness of human life
and personality began to be theoretically accepted and practically given effect
to. It was simply an attempt to realize the commandment “Thou shah not
kill”. The Civil Codes elaborated under the auspices of the Church tried
to enforce respect for human life and personality. But the Church had to
face the class distinctions of the Feudal Regime and uphold the privileges
not only of the Church, but also the Noblesse and the anointed Kings.
Throughout, therefore, the days of Canon and Civil Law, the idea of a
specific declaration of the Rights of Man and of Citizen was impossible.
Even the British Magna Charta was an attempt of the Feudal Barons to
secure their own position against the King, not a Declaration of the Rights
of all citizens, much less of all men.
The progress of liberal thought, however, brought greater and greater
recognition of human life, the sanctity of which was more often ignored
than observed in the so-called Dark Ages. Sanctity and fullness of life
through an amplitude of opportunity duly secured to all is the only guarantee
for the continuance of the race and the acceleration of its progress. Life
was cheap in the age of incessant warfare and therefore the legal systems
which grew up then, thought more of liberty and privileges than of the
sanctity of life or the dignity of labour.
The notion, however, gathered momentum when social thinkers first
began to realize the need for solemn declaration, and substantial guarantee
4
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FRAMING OF INDIA’S CONSTITUTION
of its enforcement. The Rights of Man, when proclaimed by Thomas Mann,
appeared to make a revolution in a society dominated by privilege, the more
so as even the liberal thinkers were apt to confine the civil liberties they
had won by hard and long struggle against absolute monarchs as the exclu¬
sive possession of certain favoured peoples rather than of mankind as a
whole. The idea was not bom in a political vacuum; it was the creature
of circumstances peculiar to the age.
Once accepted, however, the idea rapidly progressed till not only human
but other forms of life began to obtain recognition, though the larger con¬
ception is embodied in the Constitutions of the countries making up human
society. Sanctuaries, for example, for birds and beasts, are being formed
in several advanced communities so as not only to prevent particular species
of animals or birds becoming extinct by ceaseless slaughter, but also to guard
against man degenerating into a mere beast of prey. A National Sanctuary
has been established in more than one country to preserve the species most
commonly menaced getting rarer through other reasons. Several treaties
have, for example, been concluded between the countries concerned for regu¬
lating in some measure the hunting and destruction of whales or oysters. If
such consideration is beginning to be shown to the lower animals it goes
without saying that men of all races, creeds and colour, cannot be excluded
from the operation of this ideal.
Until very recently, however, the declaration of human rights was rather
in the nature of Rights of Citizens, unilaterally provided for in the constitu¬
tions of particular countries than a general agreement amongst the civilized
peoples of the world. We had to wait for two World Wars, an intense period
of economic distress due to widespread depression and a frenzied exhibition
of race mania, before we could get a general agreement in the so-called
United Nations Charter on the subject. The Charter contains direct refer¬
ence to some Rights of Mankind irrespective of race, colour, or sex which
the countries accepting the Charter have pledged themselves not only to
declare but also to observe and enforce in their jurisdiction. Machinery is also
being devised to see that these rights do not merely remain paper declara¬
tions, but become daily realities in the ordinary life of the average man.
With the progress of this notion, a distinction had inevitably to be drawn
between what may be called the Rights of Citizens and the Rights of Man.
The latter is a much wider term than the former though both must have
corresponding obligations. The popular belief emphasises such rights almost
to the exclusion of corresponding duties. But the constitution would be
incomplete, and even futile, if equal stress were not laid on obligations
corresponding to rights.
Another elaboration of the idea of Rights of Man has of late made rapid
progress, namely the rights of Minorities. The term “Minorities” in this
connection refers not to political minorities, but those fixed and unchanging
entities distinguished by religion or nationality, culture or language, which
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PRELIMINARY NOTES ON FUNDAMENTAL RIGHTS
39
make small groups in the midst of larger populations. They have
fundamental differences regarding the ways of life which demand special
safeguards and protection with reference to those items which they prize
specially, namely religion, culture or language.
Rights of Minorities are not of the individual, but of the group. They
are more in the nature of safeguards, than of positive privileges; and they
follow inevitably as a corollary once the generic conception of rights of man
in a civilized State is accepted. It may be added that this particular cate*
gory of rights will be meaningless if and when a real World State is set up
in which all enjoy the same rights and liberties.
As will be pointed below almost every one of these rights would be
impossible to realise, unless, side by side, toleration is cultivated and enforced.
The rights of life and liberty, and claims for equality of treatment to all,
and not only of a privileged class are common to all; and unless all realize
that these rights of any one are as sacred as that of any other, the commonest
right of any one would be in jeopardy.
In the Statement of the Fundamental Rights appended special reference
is made to the rights of Minorities due to the peculiar conjuncture of cir¬
cumstances in India at the moment In reality, however, they are rather
obligations of Majorities that they shall cultivate toleration and equal regard
for the ways of life, thought, or worship of their sister communities however
much they may differ from them, or safeguards for Minorities rather than
positive privileges of the latter.
Defining the Rights of Man, of Citizens, or Minorities is as important
and necessary under modern conditions as it was in the days when the
fight for civil liberty was first begun, against absolute monarchs or privileged
classes. For the fear of a single political party, and the causes governing
that party dominating the entire country is by no means an apprehension
of excessively nervous people. Contemporary history in Europe, America
and Asia fully confirms the apprehension. In the days of the Nazi or Fascist
domination it was a daily nightmare of millions not only in single-party
States, but also amongst their neighbours, near or far. When a single
party works for the people as a whole as the Communists claim to do in
the U.S.S.R. or as the Congress is believed to do in India, the objection
diminishes in force. But the instinct for power concentrated in one indi¬
vidual is the same whether with the Nazi or the Nationalist, the Communist
or Kuomintang; and the moment the common aim is achieved, or danger
overcome, the naked greed for personal power asserts itself. For the moment
it is true the Nazi and the Fascist is down; but even now the seed-bed for
his resurrection in a new form is not destroyed. Without seeking elsewhere
for precedent or parallel in the world today, it would do us no harm to
note that the Indian National Congress, almost in sight of its original goal,
has begun to taste power and must therefore pay for those who have brought
that party into power. These last, it is well known, are privileged groups
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FRAMING OF INDIA’S CONSTITUTION
of capitalists and landowners who found British commercial rivalry backed
by British bayonets, too strong to leave them a free field for exploitation
which could make an effective bid for power. In so far as the Congress
is the creature of these classes, and its leaders have oven unconscious affinity
or sympathy with them, the masses of India would have but changed the
colour of their exploiters’ skin.
Whatever the intellectual convictions or professions, some of the Congress
leaders have unmistakable affinity with the privileged exploiter and unless
effective safeguards are devised against any invasion of the Rights of Man
and of Citizens, the masses of India would have struggled and suffered and
sacrificed only to win independence for their exploiters, who have not the
excuse of being aliens in race, creed, or colour. As a prominent Minister
of a great Indian State put it: “Paramountcy is gone; but independence
remains.”.
Notwithstanding this danger, there is a value in having in the constitutions
of individual countries incorporated not only these Rights of Man and of
Citizens and of Minorities but also in a more sacred form in the World
Charter which provides, so to say, the sanction of the United Nations for
the actual realization or enforcement of such Rights for all.
We now turn to the other side of the shield. The Rights of Man or of
Citizens however clearly defined and solemnly guaranteed, must not be
treated as absolute and unconditional. Corresponding to the rights on any
category, there are also obligations of Citizens, of Minorities and of huma¬
nity collectively, as well as of the State, and of the United Nations. At
first sight, the Rights of Citizens, for instance, would appear as obligations
of the State; and the functions that the State has to exercise will also result
in some obligations upon its citizens. Similarly, the Rights of Man guaranteed
as sacred in the United Nations will be counterbalanced by their obligations
of mutual toleration, and conformity to the laws of the place they live
in however unaccustomed they may be to such laws, until those laws get
amended or altered by force of public opinion. Finally the Rights of
Minorities, however fully guaranteed and truly enforced, cannot avoid the
obligation of these groups not to use these rights to impede or blackmail
the majority. Toleration and co-operation for common good are as much
expected of minorities as of the majority.
Mention may be made in this connection of the seeming conflict in certain
rights themselves which is due, so to say, to the right of one person or of
one group becoming the obligation of another. Here, too, the universal obli¬
gation for toleration and mutual understanding will help to solve the problem.
Let us now proceed to consider what these rights are, and how they are
to be observed in practice, and enforced. The most convenient method for
appreciating these rights would be to divide them into some definite cate¬
gories, which would comprise almost every one of the rights or privileges
that have been incorporated hitherto in the individual constitutions, and
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41
also referred to in the United Nations Charter. The most important cate*
gories are: (1) Civil Rights, (2) Political Rights, (3) Economic and Social
Rights.
To these one more class of Scientific Rights is added by some in the inter¬
est of proper publicity. This is not quite an exhaustive classification. For
practical purposes however it is sufficient.
Notwithstanding this classification, there are certain vital rights co mm on
to all men irrespective of their nationality, race, sex, speech or religion,
which constitute the very foundation of all these rights included in the
several categories. The right to life for example is at the root of all this idea.
This does not merely mean the sanctity of either human or animal life,
which must not be infringed by any other human being except for stated
reasons or by due process of law. It means also the fullest opportunity
to develop one’s personality and potentiality to the highest level possible
in the existing stage of our civilization. Life, that is to say, the mere right
to exist, will have little value, if it is to be bereft of any opportunity to
develop or bring out what is in every man or woman. It follows inevitably
that the right to live is the right to live decently as a member of a civilized
society and have all the freedom and advantages that would go to make
life agreeable, and living assured in a reasonable standard of comfort and
decency. This right and all it implies cannot be conditioned or restricted
except by its own corresponding obligations.
Being the basis for all other rights, the Right to Life naturally will require
adequate and effective protection, guarantee, or safeguard induded in the
Constitution, or in the Civil or Criminal Procedure Codes, or the laws of
Social Order under which any given member of humanity lives.
The same may also be said of the Right to Equality, which is an indis¬
pensable prerequisite of proper system of justice, and due respect for h uman
personality. Here also the term by itself is likely to be misconceived or
interpreted unduly narrowly, if it is not added that equality is not merely
equality of treatment before the established system of Law and Order but
also of opportunity for self-expression or self-realization that may be
inherent in every human being. One important condition for the due main¬
tenance of such equality is that no restriction be placed in such matters
on any human being on the ground of sex, race, speech, creed or colour.
All these have in the past been used as excuses for exclusiveness, which
must go if equality is to be real and effective for all persons. It would
also imply equality in the matter of thought and expression, which are
conveniently described as Freedom of Conscience, of Expression, or of
Association. That will be considered more fully when we come to the
special categories to which these belong.
Yet another right of all mankind consists in the Freedom of Movement
anywhere at any time. Present day restrictions, even in the most progres¬
sive countries, against foreign immigration, or equal right to settle and live
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FRAMING OF INDIA’S CONSTITUTION
in any part of the world, are a violation of this primary right of all
mankind.
Fundamental and essential as these rights may be claimed to be, they
are nevertheless the outcome of peculiar conditions, best and most suited
to the environment in which they have to be enforced. The conditions
under which human life is to be lived are rapidly changing, due to incessant
advance in Science and Technology, that make die standard of living of one
age utterly unequal and impossible in another. This is not a limitation of
the rights stated above; it is only a recognition of the condition concomi¬
tant, apart from which the Right itself would have no meaning.
These are some of the most important of the Rights of Man, irrespective
of citizenship. They may be declared and enforced in individual constitu¬
tions; they must be agreed to and observed by the United Nations, who
constitute the first step towards a World State, its common citizenship and
human brotherhood.
Let us now consider the Rights of Citizens and Minorities in the setting
up of individual constitutions; and in the several categories mentioned above.
In the last 200 years Civil Rights have become fairly standardised; and
are incorporated in varying terms in the several constitutions of the world’s
leading countries. They are founded on the conception of justice as between
man and man, which cannot be secured without equality in the social system
and before the Tribunals of Justice.
The most important of these relate to the liberty of the person, and privacy
of the home. No interference with that right can be allowed without due
process of the law. This is a guarantee against arrest, imprisonment, or
detention without due process of law, or search warrants of a general charac¬
ter, invasion of the home and the like. Under the absolute monarchy of
the days gone by, these had been amongst the principal grievances of the
common people. It is now generally admitted that these are conditions
essential and indispensable for living on any decent level of existence.
Though these rights are described as Civil Rights they are not neces¬
sarily confined to citizens only; but may well be regarded as the rights
of humanity in general. It is in this group that the right to life and its
fullest development or expression would be in an individual constitution
included. So far, however, as the mere sanctity of life is concerned it applies
to both citizens and strangers. But so far as enabling individuals to enjoy
the fullness of life and opportunities for self-expression or self-realization
are concerned, they involve considerable outlay on the part of the State
to provide the necessary facilities, by way of education, health, entertain¬
ment, and the like, and the wherewithal for such outlay will come princi¬
pally, if not entirely, from the citizens.
It may be that the right is not equal, absolute and categoric for citizens
as well as strangers; but that it is preferentially for citizens, whether or not
on payment of any dues or fees levied by the State, while in the case of
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43
strangers other conditions may be imposed to meet the latters’ share to
the fullest measure, in providing all the facilities of equipment and ameni¬
ties at public expense.
In marked contrast with the Civil Rights is the group of so-called Political
Rights. Primarily these are Rights of Citizens, as distinguished from the
Rights of Man. They are much more directly connected with corresponding
obligations whether expressly so stated or implicit. While the general level
of civilization and the amenities of life provided thereunder would be
common to citizens and strangers in a civilized State, certain rights of
citizens which become the obligations of the State are necessarily confined
or at least primarily belong to citizens.
The most outstanding of these may be, in a democratic system of Gov¬
ernment, the right to participate in the actual system of Government, because,
ex hypothesi, it is based on the consent of the people, die governed. Natu¬
rally this must belong to the citizens, or members of the State concerned,
so long as a World State and its common citizenship are not evolved. As
a counterpart of this right, obligation rests on the citizens to bear all the
burdens of Government, and abide by its laws until changed. An equal
obligation rests on the Government to provide such a constitution and
administrative system that the consent of the governed may be fully
expressed, and truly observed.
Government in this case would be by the consent of the majority, not
all the citizens. But the measure of real progress and enlightenment in the
organization and functioning of the State machine would be judged by the
extent to which as large a majority of the people as possible irrespective
of their differences inter se on grounds of class, creed, or sex directly or
indirectly consent to the Government being established and worked. The
evolution of political parties, differentiated among themselves by real issues
of policy and economy helps to make the majority as large and, at the same
time, as shifting as possible.
Another device to the same end is the principle of ministerial responsi¬
bility to the chosen representatives of the people. This means that so long
as the representatives of the people support an Executive Ministry and their
measures,—legislative or administrative,—that Government remains in office.
But the moment they lose their confidence they have to vacate office and
yield place to those who are willing to devise their measures or policies
more in accord with the people’s representatives. The latter, it need hardly
be added, may themselves be changed, and the party complexion of the
majority altered, by dissolution erf an existing legislature, and election of
a new one to represent the wishes of the ultimate sovereign—the people.
It may be added that the principle of ministerial responsibility is not
absolutely essential to democratic government in practice. Like all human
institutions and devices, this principle of responsible Ministers is likely to
be abused, or at least distorted from the original intention. In the most
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democratic countries, the responsibility is with the Ministers collectively, and
not with an individual Minister who may happen to have lost on a given
measure the confidence of the majority of the people’s representatives.
Because, however, the responsibility is collective, all Ministers would have to
go, where the principle operates at its fullest, the moment the popular
representatives indicate a lack of confidence, even though only one may have
lost the confidence of the representatives. On the other hand, because of
collective responsibility, a party system develops which holds together on
such stringent discipline its members with the representatives of the people,
that the latter are hardly free agents. For the same reasons, the Ministers
themselves are tied to party policies, irrespective of the merits of individual
measures coming under those policies. Popular consent in such government
can only be inferred; and that, too, on very broad general lines. Ministers
are themselves chosen and their measures proposed not on merits exclusively,
but, in accordance with the estimates of their being most acceptable to the
majority of the voters or interests themselves. It is only when a people has
become fully accustomed to this system of political parties and learnt to read
between the lines of platform professions, can the system work satisfactorily.
But with all these shortcomings of the system, the basic right of the citizen
to have a system of Government based on his consent in the aggregate,
remains undisputed in the final analysis.
The responsibility of Ministers may not be directly to the people’s repre¬
sentatives, but may be to the executive head of the State, as in the United
States, who is himself directly elected by the sovereign people. In so far,
however, as the executive head is irremovable during his period of office,
and in so far as he embodies the sovereign will of the people as their chosen
representative, the working of Ministerial responsibility would be consider*
ably restricted.
The consent of the people or of the citizens is expressed by means
of free elections of the representatives. This is achieved usually by secret
ballot, so that, notwithstanding the presence of party machines, party dis¬
cipline, and party propaganda, the individual citizen can express, through
his vote for a representative, the general trend of public opinion on given
issues which the Ministry formed on the results of these elections will have
to deal with. It is, therefore, listed as another important civic right.
A number of other devices, developing in consequence of this, such as
the recurring elections at stated intervals of the entire body of the repre¬
sentatives, the so-called power of the purse vested in those representatives,
and even of veto on certain measures of the executive, not to mention
direct action by people themselves in the shape either of a referendum on
a highly important issue of national policy before action can be taken by
the Legislature or the Executive, direct initiative in respect of certain
measures desired by the people, or recall of an obnoxious Minis ter are all
meant to indicate the consent and authority of the people for the form and
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45
activities of the Government they desire to be governed by. Needless to
add that all these developments and refinements of the basic principle are
not included specifically among the Rights of Citizens.
Other Rights in this category are the Freedom of Assembly, of Speed)—
written or by means of the Press,—of Association, Movement, and Communi¬
cation by words or symbols. All these rights are nowadays generally
accepted as indisputable, and usually included in the basic constitution of a
country, or otherwise guaranteed. Most of them have already been included
in the category of Civic Rights. These Rights however are not absolute or
unconditional. Side by side with the Rights are obligations. For instance,
the amenities of criticisms of public measures or persons must be subject
to such limitations as are implied in the Law erf Libel and Slander; or
in the other provisions of the local Penal Code which concern the main¬
tenance of amicable relations between the several communities making up
the State; or which injure needlessly the feelings of any individual or section
of the people; or offend against the unwritten laws erf public decency
and morality.
For reasons of public safety, moreover, it may also be that the abuse of
these rights by individuals may have to be adequately guarded against. For
instance, the existence and working of Secret Societies, admittedly formed
for purposes of subverting the existing order, or for other unlawful purposes,
may be absolutely prohibited. In the alternative, certain conditions may be
demanded from all Societies, such as registration, publication of the list
of members or at least erf the executive committees, particulars of their funds,
etc. These are intended to be so many safeguards against unlawful or anti¬
social activities erf any Association, without denying the fundamental right
of free association.
Trial by Jury, which has been regarded as amongst the bulwarks of
Democratic Freedom, is often included in Political Rights; but it is not
confined only to citizens, and should be common to all residents in a given
place. In its origin. Trial by Jury or by one’s fellows, or peers, was rather
oligarchic than democratic. With the abolition, however, of all political
privileges, and other inequalities as between the different citizens. Trial
by Jury acts as an important bulwark of civil liberties.
It is difficult to classify the right to keep or bear arms and join the organ¬
ized defence of one’s Motherland. This is both a right, and in certain
circumstances, an obligation of citizenship as well. The right to bear arms
receives importance in a case like India, where the Arms Act for well nigh
a century kept the people wholly disarmed, and utterly unable even to
defend themselves in case of need against anti-social forces, let alone aggres¬
sion from outside. So far as modem arms and armaments are concerned,
the State has to insist on licensing and permits for keeping and carrying
about dangerous weapons or explosives that are a menace to public peace.
On the other hand, the right of the State to provide for the defence and
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FRAMING OF INDIA’S CONSTITUTION
security of the country may actually result in conscription of all adult citizens
to be trained and available in times of need for national defence, or part of
the ordinaiy normal provision against possible emergency. Conscription,
however, may be for social as well as for military reasons. It is to be hoped
that in the days to come the social demands of rebuilding a healthy, just,
progressive civilization would command the aid of conscription much more
freely and willingly than the destructive purposes of war have hitherto done.
In a country, moreover, like India, lacking in trained personnel for all the
tasks of revival and reconstruction, conscription may prove a most helpful
aid to make for such temporary shortage of trained man-power. The still
larger aim of effecting a redistribution of population all over the country
from agriculture, on which the pressure rests unduly high, to industry, will
likewise be facilitated if the principle of social conscription is unhesitatingly
adopted.
ECONOMIC AND SOCIAL RIGHTS
The most important group, however, of these rights is the third category
of Economic and Social Rights. Based on the primary right to life, in the
wider sense nowadays given to it, these rights are indispensable, if the two
preceding groups of rights are not to be meaningless. The right to free
election without a full belly would be a mockery.
Being so all-important, these Rights of individuals must be treated as in
some way the responsibilities of the entire civilized society, even though,
immediately, they may be the obligation of each given State. So far as
practicable, again, these obligations of each given State must not be condi¬
tioned and restricted by the accident of citizenship; they must be made
available to and enjoyed by all the people of each given region and so of
all the world. They are the conditions precedent and indispensable for the
full development of human personality. As such they must be guaranteed
by the combined resources of the civilized world as a whole, and
not left to be realized by the individual resources of an isolated
community.
The importance of these Rights may be reinforced by the words of the
late President Roosevelt:
We have come to the dear realization of the fact that true individual
freedom cannot exist without economic security and independence.
Necessitous men are not free men. People who are out of a job are the
stuff out of which dictators are made. In our day these economic truths
have become accepted as self-evident. We have accepted, so to speak, a
second Bill of Rights, under which a new basis of security and prosperity
can be established for all regardless of station, race or creed. Among
these are :
The right to earn enough to provide adequate food and clothing and
recreation.
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The right of every farmer to raise and sell his product at a return which
will give him and his family a decent living.
The right of every businessman, large and small, to trade in an atmos¬
phere of freedom from unfair competition and domination by mono¬
polies at home or abroad.
The right of every family to a decent home.
The right to adequate medical care, and the opportunity to achieve
and enjoy good health.
The right to adequate protection from the economic fears of old age,
sickness, accident and unemployment.
The right to a good education.
The President was convinced these promises would be implemented and
realized after the war was won. He believed these were the only conditions
of abiding peace all over the world, and attainment of new goals in the
happiness and well-being of mankind as a whole.
It is, however, not quite clear if these rosy aspirations woe meant for
the American people, or for all the masses of the world. If the latter were
his intention, the power and authority of the United Nations Organization
would have to be very considerably increased so as to entitle and enable it
to intervene in the domestic affairs of individual states and rectify social
injustice or economic exploitation of one class by another within a commu¬
nity. It is doubtful if the conscience of the western nations has awakened to
these responsibilities of our co-operation to the heights of universal equality
and fellowship.
The enumeration of these economic rights, as given by the late President,
is addressed primarily to a society making a fetish of free enterprise. Per¬
fect realization, however, of the rights so broadly stated, would only be
possible in a classless society, where each member will be expected to con¬
tribute towards the common good in accordance with his ability; and to
each member will be assured a standard of living in accordance with his
necessity.
OBLIGATIONS OF THB STATU
These rights, it may be added, form the corresponding obligations of the
State which guarantees them. Thus, for instance, the very basic right to
life or liberty requires that the State keep up sufficient machinery at its dis¬
posal to prevent any would-be aggressor aiming at the life or liberty of any
one in the community. The right to work, again, or employment necessi¬
tates such organization of the resources of the country, in a plan, as would
secure adequately, remunerative work for all citizens. The right to health
and education presupposes the establishment and maintenance of sufficient
schools, colleges, libraries and laboratories; as well as hospitals, nursing
homes, dispensaries and medical and nursing service for treating and
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preventing disease, which only the State or its delegate can provide for all
effectively.
There are. on the other hand, rights, which require the State to provide
institutions and conditions, under which alone these rights can be enjoyed.
All the rights about the liberty of the individual, would need the setting
up and maintenance of proper tribunals as well as suitable Codes of Civil
and Criminal Procedure. Even where the right in question is a simple
assertion of individual freedom, e.g., freedom of expression, the State must
maintain and enforce such laws as will not jeopardize the equal free¬
dom of others because of the exercise of this guaranteed freedom by
some.
All rights are conditioned in civilized society, by the implicit requirement
that similar rights of other members of the same society shall not be violated.
Freedom erf association may be fully declared and guaranteed. But if
it is used to destroy the freedom of othera,— e.g., by totalitarian organiza¬
tions—the State must maintain machinery to prevent such associations
operating to the prejudice of other citizens. The same applies to freedom of
conscience and worship, which guaranteed to all cannot be permitted to any
so as to deny to all others the same right.
FUNDAMENTAL RIGHTS OF CITIZENS AND HUMAN BEINGS
The fundamental rights erf citizens and of human beings in civilized
society, based upon co-operation, are not absolute and unconditional. They
are defined and limited by the very nature of the social organization, the
demands of industry, and the needs of mutual co-operation in a widespread
division of labour.
Even the mo6t sacred of all such rights, the right to life,—its dignity,
sanctity and fullness,—is not absolute and unconditional. For the same
right of every individual imposes an equal obligation of all to respect it for
all his fellows; and whosoever violates that right of another must expect
to be dealt with by the organized might of society through its courts of
justice. 1
“Freedom” is a convenient term to express some of these rights. But
absolute freedom, in the sense of freedom to action by undisciplined impulse
can only belong to the savage cave dwellers or the beast of the jungle. Rights
are coupled with or counterbalanced by obligations or duties of citizenship,
which need as much to be emphasized as rights. Some of these rights are
common to all mankind, transcending all political frontiers, and barriers of
race, creed or sex. Where deemed necessary, they are so expressly stated
in the articles which follow.
Subject to this general observation, the following are declared and guaran¬
teed by this Constitution to be the fundamental rights and obligations of
citizens, irrespective erf birth, wealth, sex, creed or complexion:
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DRAFT CLAUSES
Whereas this Constitution for the Union of India has been ordained by
the people of India to assure and guarantee the sanctity and dignity to life
to all persons living in the Union of India, and in particular to make avail¬
able to the citizens of India full benefits of political freedom, civil liberties
and economic opportunities, it is hereby ordained, assured and guaranteed
as follows:
1. All human beings are born equal, and must be treated as equal in
regard to all rights and duties, privileges and responsibilities, of public life,
social activity, and economic opportunity.
2. Every citizen of India has, and is hereby guaranteed equal rights and
opportunity in respect of education, training, health and employment in any
post, office, or capacity, irrespective of any differences of birth, sex, wealth,
creed or colour.
3. No artificial or man-made distinction between citizens and citizens, by
way of titles, honours, privileges—whether personal or inheritable.—shall be
recognized by and enforceable under this Constitution, or laws made there¬
under: provided that academic degrees, official titles, or popular honorifics,
whether of Indian or foreign origin, or conferment, may be permitted in so
far as they create no privileged class or heritable distinction.
4. No citizen of India shall be entitled to accept any title or honour or
distinction heritable or otherwise, from any foreign Ruler. Government, or
society, except with the permission of the Head of the State for the Union
of India.
5. Existing titles and dignities or privileges of the Rulers of Indian States
shall be discontinued and abolished upon the death or deposition or abdi¬
cation of the present Rulers. No titles shall be used or permitted for any
of their heirs, relations or connections.
6. Subject to such arrangements as may be made in connection with the
titles, dignities, or privileges of existing Rulers of Indian States no inherit¬
able titles, dignities, or honours shall be recognized, or permitted under this
Constitution, to any citizen of the Union of India.
7. Subject to the preceding, all existing titles, honours, distinctions and/or
privileges shall cease to exist.
8. Citizenship is a privilege which entails obligations, as well as brings
certain rights. It is acquired by birth in the country, or residence for a
prescribed minimum period, or naturalization, subject to such conditions
as may be prescribed by law.
9. Every citizen has. and is hereby guaranteed, freedom of thought and
expression of opinion, subject to such laws as are in force at any time and
relate to the maintenance of friendliness and good relations between the
several communities and citizens as well as to libel or slander. Such freedom
of thought and expression shall also be available to non-citizens also on the
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FRAMING OF INDIA’S CONSTITUTION
same conditions as to citizens. The term “freedom of expression” includes
the spoken as well as written, printed or published, material, pictures, photo¬
graphs, cartoons, and the like.
10. All means of communications, the post, the telegraph, the telephone,
the radio and the like, shall be equally accessible to all.
11. The right to free expression of thought includes freedom from any
censorship by any public authority, except under special legislation in times
of emergency like a war, and for the duration of that emergency.
12. The freedom from censorship applies not only to the sanctity of com¬
munication conveyed through the public post, but also to communications
by means of the telegraph, telephone or the wireless radio communication.
13. Every citizen has and is hereby guaranteed the right of free associa¬
tion with his fellows to promote or achieve any lawful object or interest,
in clubs, learned societies, commercial concerns, joint stock corporations,
trade unions, professional organizations, co-operative societies, and the
like, without prejudice to the equal rights of others; and subject to such
laws as relate to registration, freedom of trade and intercourse among indi¬
viduals in different parts of the country. The right to the freedom of asso¬
ciation includes the right to take all steps and adopt all peaceful measures
to attain the objective or promote the interest.
14. Every citizen has and is hereby guaranteed the right to assemble
peacefully and without arms in any [dace at any time, for any purpose not
opposed to law or morality or public peace, provided that, in times of civil
commotion or national emergency declared to be such by the proper
constitutional authority, such assemblies may be forbidden for a defined
and limited period or in a specified place or places, by appropriate lawful
authority, acting in the normal exercise of the powers conferred by law.
15. Every person living in the Union of India has, and is hereby
guaranteed the right to freedom of conscience, which includes freedom erf
belief, worship, or profession of any religion, faith, or doctrine, as well as
the negation of any such belief, subject to public order and morality; and
subject to such laws as ensure the maintenance of public peace, tranquillity,
and good relations amongst the various sects and communities in the country.
16. The State in the Union of India, and in every component part thereof,
shall be entirely a secular institution. It shall have or maintain no official
religion of established church; and shall observe absolute neutrality in
matters of religious belief, worship, or observance. All public institutions,
maintained, aided, or supported in any way by the State shall observe the
same policy of absolute neutrality in matters of religious worship, belief,
or observance.
17. No disability shall attach to any citizen by reason of his religion,
creed, or sex, in regard to public employment, office or profit or honour of
in exercise of any trade, profession or calling.
IS. The culture, language and script of specified religious or communal
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51
minorities, as well as of the different linguistic areas in the Union, or in
any component part thereof, shall be duly protected, and safeguarded, without
prejudice to any public encouragement or support being given for the
development of a single national language for official or public intercourse
throughout the Union as the official national medium of intercourse and
expression in all public documents, before all public bodies, or tribunals,
and for all public purposes.
19. No individual or corporation shall be permitted to found, support
or maintain any institution of public utility or social service, like a school,
college, library, hospital, well, tank, canal, whose use is restricted on any
ground of caste, creed, community, sex or colour.
20. Every citizen has and is hereby guaranteed equal right of access to
and use of all public places, wells, tanks, canals, roads and other means of
transport and communications, schools and colleges, parks, gardens and
museums, hospitals, dispensaries, and all other places of public utility or
resort, maintained at public expense from local, provincial or central funds
or aided from the same.
21. Any place, or institution, dedicated by any person for use by the
general public shall be free from any restriction or condition. If any restric¬
tion is imposed or condition made by the donor for the use of such place or
institution by any class or sect of the people of India, such restriction or
condition shall be null and void ab initio and of no effect.
22. Every citizen of India has the right to join in the defence of the
country. This right shall also be an obligation, which shall not be avoided
except for just cause specified by law passed by the Union Legislature from
time to time.
23. For this purpose of joining in the defence of the Union as well as to
provide for his personal safety, every citizen shall be entitled to bear arms,
subject to such laws as regards licensing and the use of explosives, made in
the interest of public safety, as may be in force in the Union or any local
legislature.
24. No individual or group of individuals, corporations, joint-stock com¬
panies, or any other organizations shall be entitled to manufacture armaments
of any kind, offensive or defensive, or means of destruction in war¬
time. These shall be made exclusively in factories, arsenals, or workshops
owned and worked wholly by the Union Government or the Government of
any component part thereof, under specific agreement with the Union Gov¬
ernment for the purpose. The storage of such material shall be solely in
Government depots in the several parts of the Union of India.
25. For organizing properly the defence of the Union, Government shall
be entitled to conscript all the man-power (and woman-power) of the country,
and to assign to any conscript such duties, functions, or tasks as may be pro¬
vided for by rules made under laws passed by the Union Legislature
authorizing such conscription.
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FRAMING OF INDIA’S CONSTITUTION
26. Such conscription may also be ordered by the Local Government in
any component part of the Union of India for any social service, or to meet
a sudden emergency, or natural calamity or for maintaining peace and tran¬
quillity under express legislation specifically authorizing such conscription
and applying to that unit.
27. Hie right of the Union or of any Local Government to conscript man¬
power and woman-power for purposes stated in the preceding articles shall
carry with it the obligation to provide conscript man-power the neces¬
sary food, housing, equipment, clothing, transport, arms and ammunition,
medical treatment and nursing aid in the case of those disabled and injured
in national defence.
28. Every citizen has and is hereby guaranteed the right of acquiring,
owning, holding, selling or mortgaging property, real or personal, in any part
of the Union, subject to such laws as relate to tenure, taxation, public dues,
local rates, stamp duties, and other such imposts, and regulations, duly
enacted and in force in any such part of the Union. Provided that, in virtue
of its sovereign authority, the Union of India (or any component part there¬
of) shall be free and entitled to acquire any private property held by any
private individual or corporation as may be authorized or permitted under
the law for the time being in force.
29. Without prejudice to the existing property in land or other form,
acquired by way of gift and owned and held by any religious body, corpora¬
tion, temple, mosque, church, synagogue, Dargah or any other religious
institution no property real or personal, shall be alienated to, or owned
or held by any such religious body, authority or institution. Nor shall any
such property held by any such religious order, corporation or organiza¬
tion be exempt from any taxation fees, dues or other charges levied by the
Union, Provincial, State or Local Governing Authority.
30. The State may, in virtue of its sovereign power and authority at any
time take over any property dues or privileges held by a religious body
or institution or in trust on its behalf, subject to such compensation, if any,
as may be deemed reasonable and appropriate.
31. Every citizen of India is in duty bound to help in the maintenance of
public peaoe and tranquillity. For this purpose, any local legislature is
authorized to enact such legislation as may be deemed necessary or proper
any time to organise civic guards, or social service corps, and provide
for their maintenance, equipment, training, and discipline.
32. Every citizen has and is hereby guaranteed the right of free movement
and settlement in any part of the Union, subject to such laws made by the
Union, or local legislature as may relate to residence and means of trans¬
port in any part of the country.
33. No proprietary rights shall be allowed to or recognized for any
private individuals or corporations, whether citizens of India or others
in:
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53
(a) any industry concerned with the production or supply of arms,
ammunition, armament or explosives, including vessels and vehicles
of war of every type or class;
(b) the soil or sub-soil of the country;
(c) mines, forests, and other forms of natural wealth like rivers or
waterfalls;
(d) any other industry which is declared by legislation of the Union
of India to be key industry, or industry vital to the existence of the
nation, or which is a parent of some other industry;
(e) any public utilities, social services, and the production and supply
of equipment and material necessary for the operation of any such
utility or service.
34. Existing rights of ownership of any degree in agricultural land and
any other items mentioned in the preceding article shall be acquired by and
on behalf of the State of India and vested in the Government of the Union
subject to such compensation if any as may be deemed proper and reasonable.
35. The right to employment, with adequate remuneration sufficient to
assure all the necessaries of life like food and such of its comforts and
amenities like housing as may be declared and accepted to be the irreducible
national minimum of civilized existence, shall be guaranteed and made avail¬
able to every citizen of India irrespective of caste, creed, or sex.
36. The work or employment mentioned in the preceding article shall be
in accordance with the training, ability or aptitude of each such worker.
37. No one shall be suffered to remain idle or unemployed except those
who on account of age are superannuated, or are disabled or incapacitated
by illness or accident from work, temporarily or permanently like expectant
mothers, or who are too young to work, or are under training. All work
shall be regarded as equally honourable and productive. Work is an inescap¬
able obligation of citizenship in India.
38. It shall be the unquestioned obligation of the State in India,—whether
the Union of India or any component part thereof,—to provide work and
employment for all its citizens, suited to the ability, aptitude and training
of each individual.
39. Slavery of any kind is forbidden. No rights which would amount to
property of any kind in human beings, or enslavement of one individual
by another, or by groups or corporations, shall be recognized. All human
beings in the Union of India are and shall be free and equal before the law.
40. All labourers attached to land and working thereon in any degree of
servile condition shall be deemed to be free workers, remunerated for their
toil by wages at prescribed or agreed rates. All forced labour or begar
of any kind is forbidden.
41. Every citizen has and is hereby guaranteed the right to free education
upto a standard prescribed as the irreducible minimum by the Union Legis¬
lature, or the Legislature of any component part thereof.
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FRAMING OF INDIA'S CONSTITUTION
42. Every citizen of India has and is hereby guaranteed the right of main*
tenance at public expense during periods of illness or temporary disability
through accident, or old age, or maternity, for such period and on such a
scale as may be prescribed by legislation of the Union or of any compo¬
nent part thereof; provided that such legislation may impose such obliga¬
tion to contribute towards the fund providing benefits under this head as
may be deemed appropriate for each category of workers and for every
contingency of illness, accident, old age, maternity, or temporary unemploy¬
ment.
43. No one shall be entitled to maintenance who does not work or has
not worked in the past for a prescribed period, for his living, except those
under or over age, or those disabled by illness or accident, or those excused
for reasons of public importance for given period from working.
44. Every worker or peasant has the right to form or join a trade union.
All workers shall be organized in appropriate trade unions, or professional
organizations, to facilitate the co-ordination and distribution of employment
as well as to maintenance of benefits during period of illness, accident, old
age, maternity and the like.
45. Every citizen of India over 18 years of age has and is hereby guaran¬
teed the right to vote or stand as candidate for all elections to Executive
or Legislative bodies, including local governing bodies, subject to such rules
regarding residence and minimum age or other qualifications as, without pre¬
judice to the generality of the preceding, may be laid down under the laws
passed by the Union or any Local Legislature for the purpose; provided
that no such legislation shall debar any citizen of India from the right to
vote on any ground of creed, sex, or wealth.
46. Except in the case of an impeachment, or prosecution before Court
Martial in time of war, and in regard to offences by members of the armea
forces, every citizen of India accused of any offence under the Indian Penal
Code is entitled to trial by jury.
47. No one accused for any offence shall be held in custody or detained
without trial, or due process of law and conviction for unreasonable period.
No one shall be charged or tried for offence under any law which was not
in existence at the time the offence was alleged to have been committed.
48. Every citizen of India, being accused of any crime, and about to be
arrested shall be entitled to be released on bail, except in the case of offences
specified as non-bailable. No one shall be liable for the same offence to
be twice put in jeopardy of life and limb.
49. Capital punishment shall be abolished.
50. No punishment which is excessive, cruel, or vindictive, shall be
inflicted on any offender duly tried and convicted. Crime shall be looked
upon as a symptom of disease, which must be treated and dealt with
accordingly and not pursued vindictively. Punishment of duly convicted
offenders shall be regarded as a cure of disease, not a mode of revenge.
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PRELIMINARY NOTES ON FUNDAMENTAL RIGHTS
55
51. No one shall be compelled to be a witness against himself in any
criminal casei
52. No one shall be deprived of life, limb or property except under due
process of law.
53. General search warrants are illegal and forbidden.
54. Every citizen of India has and is hereby guaranteed security in his
person, papers, property, house or effects against unreasonable search or
seizure.
55. No search warrants shall be issued, except on reasonable grounds,
supported by oath or affirmation, and specifically describing the place to be
searched, document to be seized or the persons or things to be apprehended
if found.
56. Excessive bail shall not be required, nor excessive fines imposed.
57. In civil suits, involving claims exceeding Rs. 100 the rights of trial
by jury shall be presaved.
58. No fact ascertained by or tried before a jury shall be otherwise
re-examined in any court, except in accordance with the Rules of Procedure
and Evidence prevailing or prescribed.
59. The powers, rights or authority of the State in India, not expressly
granted to the Union nor prohibited to component parts thereof, shall
be deemed to be reserved to the component parts of the Union and to the
people of the Union, respectively.
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3
SETTING UP OF THE ADVISORY COMMITTEE
January 24, 1947
[The Cabinet Mission's Statement of May 16, 1946 (see Vol. I, Document
No. 48) had laid down that at a preliminary meeting of the Constituent
Assembly an advisory committee should be constituted to determine the
fundamental rights of citizens\ minorities, etc. Subsequently, the
Objectives Resolution adopted by the Constituent Assembly on January
22, 1947 envisaged for India a constitution wherein justice, equality
and freedom would be guaranteed to all people and adequate safeguards
provided for the minorities and backward classes (see Document
No. 1). The first task which engaged the attention of the Assembly
after the adoption of the Objectives Resolution was the constitution of
an advisory committee on the subject of fundamental rights, minorities,
etc. On January 24, on a motion by Govind Ballabh Pant, the
Assembly adopted a resolution setting up the committee. Initially the
committee was to consist of only the 50 members named in the
resolution, but the President was authorized to nominate to the
committee 22 more members. The text of the resolution as finally
adopted and Panfs speech moving it in the Assembly are reproduced
below.]
(i) TEXT OF THE RESOLUTION
This Assembly resolves that in pursuance erf paragraph 20 of the Cabinet
Mission’s Statement of May 16, 1946, an Advisory Committee be constituted
as hereinafter set out:
1. (a) The Advisory Committee shall consist of not more than 72 members
who may include persons who are not members of the Assembly.
(b) It shall consist initially erf the following members:
(1) Shri Jairamdas Daulatram, (2) The Hon’ble Shri Mehr Chand Khanna,
(3) Dr. Gopi Chand Bhargava, (4) Bakshi Sir Tek Chand, (5) Dr. Profulla
Chandra Ghosh, (6) Shri Surendra Mohan Ghose, (7) Dr. Syama Prasad
Mookerjee, (8) Shri Prithvi Singh Azad, (9) Shri Dharam Prakash, (10) Shri
H. J. Khandekar, (11) The Hon’ble Shri Jagjivan Ram, (12) Shri P. R.
Thakur, (13) Dr. B. R. Ambedkar, (14) Shri V. I. Muniswami Pillai, (15)
Sardar Jogendra Singh, (16) The Hon’ble Sardar Baldev Singh, (17) Sardar
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SETTING UP OF THE ADVISORY COMMITTEE
57
Pratap Singh, (18) Sardar Harnam Singh, (19) Sardar Ujjal Singh,
(20) Gyani Kartar Singh, (21) Dr. H. C. Mookherjee, (22) Dr. Alban ITSouza,
(23) Shri P. K. Salve, (24) Shri J. L. P. Roche-Victoria, (25) Mr. S. H. Prater.
(26) Mr. Frank Reginald Anthony, (27) Mr. M. V. H. Collins, (28) Sir Homi
Mody, (29) Shri M. R. Masaoi, (30) Shri R. K. Sidhwa, (31) Shri Rup Nath
Brahma, (32) Khan Abdol Ghaffar Khan, (33) Khan Abdul Samad Khan,
(34) The Hon’ble Rev. J. J. M. Nichols-Roy, (35) Shri Mayang Mokcha,
(36) Shri Phool Bhan Shah, (37) Sri' Devendra Nath Samanta, (38) Shri
Jaipal Singh, (39) Acharya J. B. Kripalani, (40) The Hon’ble Maulana Abul
Kalam Azad, (41) The Hon’ble Sardar Vallabhbbai J. Patel, (42) The Hon’ble
Shri C. Rajagopalachari, (43) Rajkumari Amrit Kaur, (44) Shrimati Hansa
Mehta, (45) The Hon’ble Pandit Govind Ballabh Pant, (46) The Hon’ble
Shri Gopinath Bardoloi, (47) The Hon’ble Shri Purushottamdas Tandon,
(48) Diwan Bahadur Sir AUadi Krishnaswami Ayyar, (49) Shri K. T. Shah,
(50) Shri K. M. Munshi.
(c) The President may at any time or at different times nominate mem¬
bers to the committee not exceeding 22, 7 of whom shall be Muslims
representing the Provinces of Madras, Bombay, the United Provinces,
Bihar, the Central Provinces, Orissa and Assam.
2. The Advisory Committee shall appoint subcommittees to prepare
schemes for the administration of the North-Western tribal areas, the North-
Eastern tribal areas and the excluded and partially excluded areas. Each
of such subcommittees may co-opt not more than 2 members from the
particular tribal territory under its consideration for the time being, to assist
it in its work in relation to that territory.
3. The Advisory Committee may appoint other subcommittees from time
to time as it may deem necessary.
3-A. The quorum for the committee or any of its subcommittees shall
be one third of the total number of members for the time being of the com¬
mittee or of the subcommittee concerned.
4. The Advisory Committee shall submit the final report to the Union
Constituent Assembly within three months from the date of this Resolution
and may submit interim reports from time to time, but shall submit an
interim report on fundamental rights within six weeks and an interim
report on minority rights within ten weeks of such date.
5. Casual vacancies in the Advisory Committee shall be filled as soon as
possible after they occur by nomination by the President
6. The President may make standing orders for the conduct of the proceed¬
ings of the committee.
(il) PANT’S SPEECH MOVING THE RESOLUTION*
Sir, this Resolution not only follows the scheme outlined in the Statement
*C. A. Deb, Vol. II, pp. 308-312.
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58
FRAMING OF INDIA’S CONSTITUTION
of May 16th but it also adopts the phraseology of that scheme. The scheme
provides for one single committee to deal with the rights of minorities,
with the rights of citizens and with questions relating to the administration
of the Tribal and Excluded and Partially Excluded Areas. Left to ourselves,
we would have preferred a committee for each of these subjects and perhaps
two committees for dealing with the problems relating to the North-West
Frontier and the North-Eastern Frontier, but as the scheme envisaged one
committee, we thought it better not to depart from that direction or propo¬
sal. The committee has consequently become bigger than it would have
been, had there been a separate committee to deal with each of the subjects.
This committee. Advisory Committee as it is called, is being appointed
under, paragraph 19, clause (iv). It runs thus :
A preliminary meeting will be held at which the general order of business
will be decided, a chairman and other officers elected and an Advisory
Committee on rights of citizens, minorities and tribal and excluded areas
set up.
Thus, according to the procedure prescribed here, in the ordinary course,
we woe expected to take up this item immediately after the election of the
President. We refrained from doing so out of regard for the absentee
members. We wanted to facilitate the entry of the members of the Muslim
League and to secure their co-operation in the deliberations of this Assembly.
It is a matter for regret that our efforts in that direction have not succeeded
so far. Not only did we postpone the consideration of this item which was
necessary in order to proceed further with the course chalked out for us
by this Statement, but the Congress went further and accepted the interpre¬
tation put by His Majesty’s Government and the Muslim League on some
of the contentious clauses of that Statement, and also accepted a large part
of the declaration made by the British Cabinet on the 6th December. The
Congress on the 5th of January unequivocally declared its acceptance of the
interpretation put on the grouping clauses by the League. This Assembly
met on the 20th. There woe fifteen days in between. We had postponed
the consideration of this item. Not only has the Muslim League not passed
any formal resolution in favour of their entry into this House, but the
statements made by persons who claim to be in a position to know the
mind of the League, still point the other way. No suggestion has been
made to the office-bearers of this Assembly, to the Secretary or any¬
body else, by any responsible representative of the Muslim League for the
postponement of this Assembly or of any item of business included in the
Order Paper. Under the circumstances, we cannot but proceed with the
business that has been already prescribed, determined and formulated for
us. The responsibility for the course that is being adopted, if it embarrasses
or inconveniences anybody, rests on those who have chosen to keep aloof.
I think every responsible and dispassionate person will accept that the Con¬
gress and the Hon’ble Members of this House have done more than what
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SETTING UP OF THE ADVISORY COMMITTEE
59
could be expected of them in order to facilitate the participation of the
Muslim League in the deliberations of this Assembly. But they have all
the same stuck to their original attitude of negation and have not cared
to join this Assembly in the great and sacred task that lies ahead.
I consider it necessary to make these remarks, especially in view of some
articles that have appeared in the press and in one of the local papers. It
is unreasonable on the part of any person—I am using a mild expression—to
suggest further postponement of this item, which ought to have been taken
up at the very outset. The tender solicitude shown by the Hon’ble Members
of this House for the absentee members has not only not been appreciated,
but it has been misunderstood. There is another aspect of this question.
The people of this country, millions are scanning the proceedings of this
Assembly in order to see what progress we are making and how near we
are to the goal which we have before us. Every day’s delay is causing them
disappointment; and on the other side, there is vigorous propaganda, sug¬
gesting that this Assembly will end in smoke, that all its efforts, delibera¬
tions and endeavours will prove futile, and nothing will come out of them.
In the circumstances, any one interested in the success of this Assembly
must realize the responsibility that rests on the shoulders of the Hon’ble
Members of this House. They cannot afford to put off indefinitely the busi¬
ness of this House, and they cannot allow that hope be deferred till hope
is stilled altogether. So, I trust Hon’ble Members will unanimously accept
the Motion that I have placed before them.
As they know, provision has to be made for the determination of funda¬
mental rights, the rights of minorities and for the administration of Tribal
and Backward Areas. The number of representatives has been fixed with
due regard to the tasks that lie in front of this committee. Ours is a vast
country and the numbers living here now exceed 400 million. In the
circumstances, however one may try to reduce the strength of a com¬
mittee of this character, one cannot go below a certain minimum, and we
have tried to do justice to all interests and to all elements and at the same
time to limit the figure to a reasonable and workable limit. There is provi¬
sion for 72 members, but originally it was 68. Hon’ble Members know that
there is provision to be made for citizens’ rights. For that purpose, we want
representatives of the General Body. Fundamental rights are the concern
of all, and no question of minority or majority can arise in connection with
those rights. In fact the Secretary of State in his speech in the House of
Lords last month definitely stated that such members, to look after the ques¬
tion of the citizens’ rights, would be there. Then you have to elect members
for looking after the minority rights. Hon’ble Members are aware we have
got a number of minorities. Ours is a rich variety of cultures and luckily
we have got a number of groups who supplement and complement each
other in order to build the complete whole known as the Indian nation. So
we have provided in this Resolution for an initial committee of 52 members.
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60
FRAMING OF INDIA’S CONSTITUTION
but according to the amendment which will be moved by Mr. Munshi, the
number is to be SO and not 52. Out of these SO only 12 will be represen¬
tatives of the general sections. Others will represent the minorities and the
Tribal and Excluded Areas. The minorities will be represented in the
following manner: The Hindus of Bengal, Punjab, N.W.F.P., Baluchistan
and Sind will have 7 representatives: the Muslims of the 7 Provinces of
U. P., Bihar, C. P., Madras, Bombay, Assam and Orissa will have similarly
7 representatives; the Depressed Classes or the Scheduled Castes will have
7 representatives; the Sikhs will have 6; the Indian Christians will have
4; Parsis will have 3 ; Anglo-Indians will have 3 ; and the Tribal Areas and
Excluded Areas will have 13.
In addition there will be 10 nominations by the President. In the
Resolution the number is higher. Out of the persons now to be nominated
according to the amendment that will be moved by Mr. Munshi, S will be
set apart for the Tribal Areas, 7 for the Muslim minority Provinces and the
rest 10 in number will be at the disposal of the President, so that he may
nominate such persons as may conduce to the successful working of this
committee, and whose contribution may be helpful in reaching sound and
satisfactory decisions. In this way this committee will be formed. In any
case, whatever be the number, the voice of the minorities and the representa¬
tives of the Excluded and Tribal Areas will preponderate in this committee.
They will be in a position to record their decisions and no section will be in
a majority. So this committee will fully reflect the opinion of the minorities
and the Backward Tracts and will I hope be able to reach decisions which
Will fully secure their position and ensure the protection of their rights.
Paragraph 2 of this Resolution proposes that sub-committees should be
appointed for the administration of the North-Western Tribal Areas, the
North-Eastern Tribal Areas and the Excluded and Partially Excluded Areas.
It will be necessary to appoint small sub-committees for this purpose as
they call for close study on the spot, and, unless the questions are examined
very closely by qualified persons and local opinion is fully consulted, it will
not be easy to reach conclusions that may suit the requirements of the parti¬
cular areas. Besides the appointment of some sub-committees, the Resolu¬
tion also empowers these sub-committees to co-opt two members from the
specific territory whose questions may be under consideration for the time
and to the extent such co-option is considered necessary for the considera¬
tion of the problems relating to such territory.
Clause 4 prescribes the time-limit within which the final report should be
submitted by this Advisory Committee. This should be done within three
months. If Hon’ble Members will refer to paragraph 20 of the Statement,
they will find there these words:
The Advisory Committee on the rights of citizens, minorities and Tribal
and Excluded Areas will contain due representation of the interests affected
and their function will be to report to the Union Constituent Assembly
upon the list of fundamental rights, clauses for protecting minorities, and
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SETTING UP OF THE ADVISORY COMMITTEE
61
a scheme for the administration of Tribal and Excluded Areas, and to
advise whether these rights should be incorporated in the provincial, the
group or the Union constitutions.
It is necessary to conduct the business of this Advisory Committee speedily
so that its recommendations may reach this House with the least possible
delay or loss of time. Neither any section nor any group nor the central
Union Assembly can frame any constitution until and unless it has before
it the proposals that may emerge as a result of the deliberations of the
Advisory Committee. The central Union Assembly should consider this
report so that the task of framing Provincial and group constitutions, if
any, and the central constitution may start in right earnest. So it is desirable
that the report of this committee should reach us at an early date and that
is why this provision has been made.
I have tried to give a factual narrative and analysis and a certain degree
of elucidation of the Resolution that is under consideration. With the per¬
mission of Hon’ble Members and the President, I should like to make a
few remarks of a general character. The question of minorities everywhere
looms large in constitutional discussions. Many a constitution has foundered
on this rock. A satisfactory solution of questions pertaining to minorities
will ensure the health, vitality and strength of the free State of India that
will come into existence as a result of our discussions here. The question
of minorities cannot possibly be overrated. It has been used so far for
creating strife, distrust and cleavage between the different sections of the
Indian nation. Imperialism thrives on such strife. It is interested in
fomenting such tendencies. So far, the minorities have been incited and have
been influenced in a manner which has hampered the growth of cohesion and
unity. But now it is necessary that a new chapter should start and we should
all realise our responsibility. Unless the minorities are fully satisfied, we
cannot make any progress; we cannot even maintain peace in an undis¬
turbed manner. So, all that can possibly be done should be done. We
should have, in fact, proposed a committee of this type even if there had
been no mention of it in the Statement of May 16th. If Hon’ble Members
will refer to the Objectives Resolution which was passed unanimously by
this House, they will find these words in clauses (5) and (6) :
Wherein shall be guaranteed and secured to all the people of India justice,
social, economic and political; equality of status, of opportunity, and
before the law, freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and public morality; and
wherein adequate safeguards shall be provided for minorities, backward
and tribal areas, and depressed and other backward classes.
So, the House has already accepted the fundamentals of this Resolution
and it has done so unanimously. It is a matter which should hearten the
minorities. The essence of these rights has already been conceded and con¬
ceded voluntarily and unanimously by all the Members of this House. I
hope every effort will be made in this Advisory Committee to reach decisions
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62
FRAMING OF INDIA’S CONSTITUTION
that will fully satisfy the minorities. Hon’ble Members may be aware, and
if they are not, I believe I will not be disclosing a secret when I tell them,
that the entire strength of this committee has been fixed in accordance with
the wishes of one and each of every one of all the minorities in this House.
It represents their complete agreement. We have subordinated every other
consideration in order to secure contentment and satisfaction. The task of
constitution making is a practical one and we should not be lost in the
doctrinaire maze; we should look at problems from a realistic point of view
and see that the decisions that we take are not only just, but are also regarded
as just by those affected thereby. We trust that in this committee every
regard will be paid to the wishes of the different minorities and the decisions
taken will be fully satisfactory to them.
In this connection, I should also like to remind the minorities erf some
of the historical developments of recent years. As Hon’ble Members may
be aware, after the termination of the first World War, a number of States
were set up, especially in Eastern Europe, and provisions for the protection
of minorities were incorporated in the constitutions of these States such
as Czechoslovakia, Austria, Bulgaria, Poland and others. Not only were
such provisions incorporated in the constitutions, but they formed part of
solemn stipulations in the treaties entered into between the Associated and
Allied powers, as they were called, and these new States that were then
brought into existence. Guarantees were given by the Allied and Associated
Powers to the minorities in these various States. Declarations were also
made at international conferences and by the League of Nations. They
were assured by outside authorities and guarantees were given by treaties
entered into by than with these Associated Powers. But, what was the
result? No minority had been the victim of greater and more ruthless
tyranny and oppression, atrocities and brutalities than the minorities that
lived in these States and some of them have perhaps completely faded away
and disappeared since. Let not the minorities lode to any outside power
for the protection of their rights. This will never help them. Let not the
lesson of history be lost. It is a lesson which should be burnt deep in the
hearts and minds of all minorities that they can find their protection only
from the people in whose midst they live and it is on the establishment of
mutual goodwill, mutual trust, cordiality and amity that the rights and
interests not only of the majorities but also of the minorities depend. This
lesson of history, I hope, will not be forgotten.
It is not for me to attempt any dissertation on the various aspects of
minorities or fundamental rights. I cannot however refrain from referring
to a morbid tendency which has gripped this country for the last many years.
The individual citizen who is really the backbone of the State, the pivot,
the cardinal centre of all social activity, and whose happiness and satisfac¬
tion should be the goal of every social mechanism, has been lost here in
that indiscriminate body known as the community. We have even forgotten
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SETTING UP OF THE ADVISORY COMMITTEE
63
that a citizen exists as such. There is the unwholesome, and to some
extent a degrading habit of thinking always in terms of communities and
never in terms of citizens. (Cheers.) But it is after all citizens that form
communities and the individual as such is essentially the core of all mecha¬
nisms and means and devices that are adopted for securing progress and
advancement It is the welfare and happiness of the individual citizen which
is the object of every sound administrator and statesman. So let us remem¬
ber that it is the citizen that must count. It is the citizen that forms the
base as well as the summit of the social pyramid and his importance, his
dignity and his sanctity, should always be remembered. If you bear this
in mind, I think we shall understand and appreciate the importance of the
fundamental rights. Because, on the proper appreciation of these rights has
depended the progress of humanity. The Atlantic Charter with its Four
Freedoms, the Charter of Rights of Men from the time bf Paine and Wells
to that of the Declaration made last year represent the noble advance in
the history of the human race. After all we must remember that the goal
and objective of all human activity is a World State in which all citizens
would possess the cosmopolitan outlook, would be equal in the eyes of the
law and would have full and ample opportunity for economic, social and
political self-fulfilment. We find that in our own country we have to take
particular care of the Depressed Classes, the Scheduled Castes and the
Backward Classes. We have to atone for our omissions—I won’t use the
word commissions. We must do all we can to bring them up to the
general level and it is a real necessity as much in our interest as in theirs
that the gap should be bridged. The strength of the chain is measured by
the weakest link of it and so until every link is fully revitalised, we will
not have a healthy body politic. I hope this Advisory Committee will place
before itself the ideals for which humanity has worked. It will try to
forge such sanctions and such rights as will enable this Assembly not only
to frame a constitution but to achieve the independence of India. We are
here not only for a formal task but for a real one and that has to be
fulfilled. Let us hope that this Advisory Committee will bring concord and
amity, goodwill and trust, in place of mutual strife, that occupies the poli¬
tical stage today and that as a result of the deliberations of this committee
we will have prepared the ground for Independent India for which we
live, for which many have died and for which alone life is worth living.
(Loud cheers)
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4
SUB-COMMITTEE ON FUNDAMENTAL RIGHTS
February-April 1947
[At the first meeting of the Advisory Committee on Fundamental Rights .
Minorities etc . held on February 27, 1947, Vallabhbhai Patel was unani¬
mously elected chairman and five sub-committees—including one on
fundamental rights—were appointed. The Fundamental Rights Sub-
Committee held three sittings. At the first sitting which took place on
February 27 itself, J. B. Kripalani was elected chairman and the general
procedure and order of business for the committee were settled. The
next meeting was fixed for March 24 mainly with a view to allow
time and opportunity to the members to formulate their own proposals
and study those made by others. At its second sitting—March 24 to 31
—the committee discussed in detail the various drafts and notes sub¬
mitted by its members. The conclusions arrived at in regard to the
different clauses on fundamental rights were embodied in the draft
report of the sub-committee and circulated to its members for their
comments and suggestions, on April 3. Along with the draft report
an explanatory note prepared by the Constitutional Adviser was also sent
for the use of members. During the third sitting—April 14 to 16 —
the draft report was discussed and certain clauses were revised in the
light of the members* comments and suggestions. The sub-committee
submitted its final report to the Advisory Committee on April 16. The
minutes of the meeting of the Advisory Committee at which the sub¬
committee was appointed, the notes, memoranda and drafts submitted
to the sub-committee, the minutes of the meetings of the sub-committee,
the draft report and comments thereon, as well as the final report, are
reproduced below.]
(i) MINUTES OF THE FIRST MEETING OF THE ADVISORY COMMITTEE
February 27, 1947
Present: (1) Shri Jairamdas Daulatram, (2) Bakshi Sir Tek Chand. (3)
Dr. Profulla Chandra Ghosh, (4) Shri Surendra Mohan Ghose, (5) Dr.
S. P. Mookerjee, (6) Shri Prithvi Singh Azad, (7) Shri Dharam Prakash,
(8) Shri H. J. Khandekar, (9) The Hon’ble Shri Jagjivan Ram, (10) Shri
P. R. Thakur, (11) Dr. B. R. Ambedkar, (12) The Hon’ble Sardar Baldev
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SUB-COMMITTEE ON FUNDAMENTAL RIGHTS
65
Singh, (13) Sardar Hamam Singh, (14) Sardar Ujjal Singh, (15) Gyani Kartar
Singh, (16) Dr. H. C. Mookherjee, (17) Dr. Alban D’Souza, (18) Shri P. K.
Salve, (19) Shri J. L. P. Roche-Victoria, (20) Mr. S. H. Prater, (21) Mr. Frank
R. Anthony, (22) Mr. M. V. H. Collins, (23) Sir Homi Mody, (24) Shri
M. R. Masani, (25) Shri R. K. Sidhwa, (26) Shri Rup Nath Brahma, (27)
Khan Abdul Ghaffar Khan, (28) Khan Abdul Samad Khan, (29) The Hon’ble
Rev. J. J. M. Nichols-Rpy, (30) Shri Mayang Nokcha, (31) Shri Phool
Bhan Shah, (32) Shri Devendra Nath Samanta, (33) Shri Jaipal Singh, (34)
Acharya J. B. Kripalani, (35) The Hon’ble Maulana Abul Kalam Azad,
(36) The Hon’ble Sardar Vallabhbhai Patel, (37) The Hon’ble Shri C.
Rajagopalachari, (38) Rajkumari Amrit Kaur, (39) The Hon’ble Pandit
Govind Ballabh Pant, (40) The Hon’ble Shri Purushottamdas Tandon, (41)
Sir Alladi Krishnaswami Ayyar, (42) Shri K. T. Shah, (43) Shri K. M.
Munshi, (44) The Hon’ble Shri Gopinath Bardoloi.
The Hon’ble the President, Constitutional Adviser, Secretary and Messrs
R. K. Ramadhyani and Jugal Kishore Khanna woe also present.
1. On a proposal by Mr. Jaipal Singh, seconded by Sardar Hamam Singh,
the Hon’ble Sardar Vallabhbhai Patel was unanimously elected Chairman
of the committee.
2. The following sub-committees were set up :
1. Fundamental Rights Sub-Committee
(1) Acharya J. B. Kripalani, (2) Mr. M. R. Masani, (3) Professor K. T.
Shah, (4) Rajkumari Amrit Kaur, (5) Sir Alladi Krishnaswami Ayyar, (6)
Mr. K. M. Munshi, (7) Sardar Harnam Singh, (8) The Hon’ble Maulana
Abul Kalam Azad, (9) Dr. B. R. Ambedkar, (10) Mr. Jairamdas Daulatram.
2. North-East Frontier Tribal Areas and Assam Excluded and Partially
Excluded Areas Sub-Committee
(1) The Hon’ble Srijut Gopinath Bardoloi, (2) The Hon’ble Rev. J. J. M.
Nichols-Roy, (3) Mr. Rup Nath Brahma, (4) Mr. Mayang Nokcha, (5) Mr.
A. V. Thakkar.
3. North-West Frontier Tribal Areas Sub-Committee
(1) Khan Abdul Ghaffar Khan, (2) Khan Abdul Samad Khan, (3) The
Hon’ble Mr. Mehr Chand Khanna.
4. Excluded and Partially Excluded Areas Sub-Committee (except those
in Assam )
(1) Mr. A. V. Thakkar, (2) Mr. Jaipal Singh, (3) Mr. Devendra Nath
Samanta, (4) Mr. Phool Bhan Shah, (5) The Hon’ble Mr. Jagjivan Ram, (6)
Dr. Profulla Chandra Ghosh, (7) Mr. Raj Krushna Bose.
5. Minorities Sub-Committee
(1) The Hon’ble Shri Jagjivan Ram, (2) The Hon’ble Maulana Abul Kalam
Azad, (3) Dr. B. R. Ambedkar, (4) Sardar Jogendra Singh, (5) Dr. S. P.
Mookerjee, (6) Sardar Ujjal Singh, (7) Sardar Hamam Singh, (8) Bakshi
Sir Tek Chand, (9) Dr. Gopi Chand Bhargava, (10) Shri H. J. Khandekar,
(11) Mr. P. R. Thakur, (12) Sir Homi Mody. (13) Dr. H. C. Mookherjee,
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(14) Shri P. K. Salve, (15) Mr. S. H. Prater, (16) Mr. F. R. Anthony, (17)
The Hon’ble Shri C. Rajagopalachari, (18) Rajkumari Amrit Kaur, (19)
Shri Jairamdas Daulatram, (20) Mr. R. K. Sidhwa, (21) Shri Rup Nath
Brahma, (22) Mr. M. Ruthnaswamy, (23) Mr. M. V. H. Collins, (24) Dr.
Alban D*Souza, (25) Shri K. M. Munshi, (26) The Hon’ble Govind Ballabh
Pant.
Mr. Jairamdas Daulatram suggested that the President of the Constituent
Assembly should be authorized to nominate additional members to the
various sub-committees. This was agreed to.
3. The Chairman pointed out that the committee had its time-table fixed
by the Constituent Assembly, according to which the main committee had
to submit its report before the 24th April, the Fundamental Rights Sub-
Committee before the 6th March and the Minorities Sub-Committee before
the 4th April. As it was not possible to submit these reports before the due
dates, the committee decided to request the President of the Constituent
Assembly to extend the time-limits in anticipation of the sanction of the
Constituent Assembly.
4. It was decided that the main committee should meet after the prelimi¬
nary reports of one or more of the sub-committees were received.
ANNEXURE
PATEL'S SPEECH
(at the first meeting of the Advisory Committee, February 27, 1947)
Gentlemen, I thank you most sincerely for the honour—the great honour—that
you have conferred upon me by reposing your confidence in electing me as chair¬
man of a committee which is composed of various interests. This committee forms
one of the most vital parts of the Constituent Assembly and one of the most
difficult tasks that has to be done by us is the work of this committee. Often you
must have heard in various debates in British Parliament that have been held on
this question recently and before when it has been claimed on behalf of the British
Government that they have a special responsibility—a special obligation—for the
protection of the interests of the minorities. They claim to have more special
interest than we have. It is for us to prove that it is a bogus claim, a false claim,
and that nobody can be more interested than us in India in the protection of our
minorities. Our mission is to satisfy every one of them and we hope we shall be
able to satisfy every interest and safeguard the interests of all the minorities to
their satisfaction. Let us hope that our deliberations will be so conducted that
we can disillusion those who are looking with a critical eye from outside that we
know how to conduct our business and we know how to rule better than those
who claim that they can rule others. At least let us prove we can rule ourselves
and we have no ambition to rule others. In this committee, therefore, we begin
our work today with a determination and a desire to come to decisions not by
majority but by uniformity. Let us sink all our differences and look to one and
one interest only, which is the interest of all of us—the interest of India as a whole.
Today’s work is the work of election to certain sub-ccmmittees for which the
Resolution of the Constituent Assembly has laid down ceitain directions and these
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67
committees have also been asked to finish their task within a certain period or
to report to the Constituent Assembly within that period. Our committee as a
whole has also been asked to report within three months. It is quite possible that
we may not be able, or the committees may not be able, to finish their work
within that period because the committees have to wait for their full formation
because the representation is not full and therefore it is possible that we may have
to ask for more time. But at the same time, you have seen the recent pronounce¬
ments of the British Government They have fixed a date within which complete
transfer of power is to take place and therefore it is our duty to act as expedi¬
tiously as possible and finish our task to help the main Constituent Assembly to
have our report before it and our report may be such as would give them least
possible trouble.
* * •
For the present, the President has been good enough to nominate three members
to the committee. The rest of the places have been kept vacant for a purpose
which you all know. We have a certain number of seats reserved for the Muslim
minority provinces. Those seats—I think seven—have to be filled in by the Muslim
League and it is better that we should give them more time to take their position
fend then if they come in their names will be put up and the President will be
good enough to nominate them. The three names who have been nominated for
the present are : Mr. A. V. Thakkar, Mr. M. Ruthnaswamy, Mr. Raj Krushna
Bose. The rest will be nominated later. So we now have 53.
(n) NOTES, MEMORANDA AND DRAFTS SUBMITTED TO THE
SUB-COMMITTEE
March, 1947
(a) A Note on Fundamental Rights by Alladi
Krishnaswami Ayyar
March 14, 1947
* * *
A distinction has necessarily to be drawn between rights which are justi¬
ciable and rights which are merely intended as a guide and directing objec¬
tives to state policy. This distinction has been maintained and indicated in
the recent Irish Constitution. Under the American Constitution, all the
guaranteed rights being legal and constitutional in their nature are justici¬
able and as such enforceable by courts. The rights however having been
formulated in very general and comprehensive terms, the American Supreme
tJourt had to necessarily read into these rights implied reservations and
exceptions. The Supreme Court has been discharging the trust of drawing
the line between personal liberty and the need for social control, delicate
as the task is. In the result, the Supreme Court has created new limitations
upon social control and has put new limitations upon personal liberty. The
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FRAMING OF INDIA'S CONSTITUTION
due process clause has been largely availed of in either expanding or narrow¬
ing the scope of the clauses guaranteeing personal liberty. This has been
illustrated in regard to the provisions relating to the freedom of the press,
the freedom from censorship, religious liberty guaranteed by the First Amend¬
ment, privilege to bear arms, privileges of assembly and petition, in the
interpretation given to slavery and involuntary servitude, searches and
seizures, public trial, the equal protection guaranteed by the 14th Amend¬
ment and generally the elastic interpretation put upon ‘due process’ from
time to time by the Supreme Court. The later constitutions framed on the
model of the U. S. have tried to expand the working in the U. S. Constitution
by compendiously seeking to incorporate the effects of the American deci¬
sions. The question before the Constituent Assembly of India is whether to
follow the model of the United States or of the later constitutions.
Most of the later constitutions have in formulating fundamental rights
merely referred to the rights of citizens while of course providing for law
of citizenship or nationality. In this respect in the U. S. Constitution
certain human rights are guaranteed to all people for the time being
resident in or under the protection of the U. S. Whereas certain other
rights are secured to citizens as such, according to the decisions of the U. S.
Supreme Court, most of the rights secured by the first 8 amendments includ¬
ing the famous Fifth Amendment, which enacts that no person shall be
deprived of life, liberty or property without ‘due process’ of law, are shared
by every one in the U.S. The first eight amendments refer only to Federal
Government as such, but these provisions have practically been copied in
all the State constitutions. The 14th Amendment in terms applies to States
and most of the principles underlying the first eight amendments have been
read into the latter part of the Fourteenth Amendment. The Fifteenth and
Nineteenth Amendments relating to franchise in terms refer only to the
citizens of the United States. In this respect also the Constituent Assembly
will have to address itself whether to follow the U. S. model or other
models. Similar differentiations occur in the Swiss Constitution.
The Union powers being restricted in scope, care will have to be taken
to bring in (a) the freedom of inter-state and inter-provincial trade, (b) inter¬
state and inter-provincial movement, (c) if there is to be a state or provincial
citizenship, a provision like Art. 4, Section 2 of the U. S. Constitution that
the citizens of each State shall be entitled to all the privileges and immuni ties
of the several states or the Provinces, (d) a provision like S. 10, preventing
states or provinces levying duty on foreign exports or imports. The
Constitution will necessarily have to provide for a law of nationality as such
law is the necessary foundation for formulating any such fundamental
rights and with the peculiarities of the Indian political situation and the
Federal Union being the foundation of constitutional structure, necessitate
a double citizenship, that has to be provided for. In some of the constitu¬
tions as in the U. S. at the present day, after the Fourteenth Amendment, the
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69
Federal citizenship is the main thing and State citizenship is incidental to
it or flows from it with the additional qualification of residence. In a consti¬
tution like that of Switzerland the reverse process has been adopted. This
problem will also have to be tackled. Lastly, the machinery for the vindi¬
cation and enforcement of the rights will have to be carefully considered and
in this connection the need for an ultimate Court of Error or Appeal like
the U. S. Supreme Court will have to be thought of.
( b) Munshi’s Note and Draft Articles on Fundamental Rights
March 17, 1947
NOTB
1. This chapter deals with the totality of human rights vested in every
citizen of the Union throughout the territories thereof and in some cases in
every person within it. It is intended to be a legal instrument creating defi¬
nite and legally enforceable rights and corresponding duties between the
Union, units and the citizens of India. The American and French Declara¬
tions of Rights were in a like manner constituted the highest law of the State
binding both upon its supreme legislature and executive organs.
2. Mere precepts are claimed to have a shaping influence cm public opinion.
They form, it is said, a solemn restatement of high purposes round which
public opinion may rally and supply a moral standard for acts and omis¬
sions of the State. But most of the general declarations found in national
constitutions and international documents have proved ineffective to check
the growing power of the modem State. The fate of the Weimar Constitu¬
tion is an instance in point. On the contrary they create an unwarranted
impression of progress and freedom. In India, particularly, general precepts
which may be considered less than necessary by an advanced thinker on
socialistic lines will not be looked at, much less understood, or applied in
some parts of the country where feudal notions still are deeply ingrained.
It is also a moot point whether India will necessarily imitate the socialistic
solutions of the West or evolve a characteristic solution of its own.
3. Though Clause 20 of the Statement of May 16 contemplates the possi¬
bility of distributing fundamental rights of citizens between the Union,
groups, and the units, fundamental rights of citizens of the Union have
no value if they differ from group to group or from unit to unit or are
not uniformly enforceable. Fundamental rights and duties have since
World War I been accepted as an indispensable condition of the peaceful
progress of the world. During World War II it has been accepted as an
axiom that world-wide guarantees of the Rights of Man are an essential
condition of stable international society. They play a great part in prevent¬
ing single party dictatorship and solving the problems of minorities as they
remove the danger of a minority forming a State within a State and looking
6
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FRAMING OF INDIA’S CONSTITUTION
to foreign States for protection. But in order to achieve this purpose, rights
must be so embedded in the positive law of the country as superior to the
powers of any government that they become effective guarantees against the
action of the State.
4. Judicial review of fundamental rights is prescribed by the Constitution
of the U. S. A.; Switzerland (Article 113), and in the Constitution of Danzig.
In Ireland, the Federal High Court is vested with original jurisdiction (Article
34 of the Constitution of 1927) to decide the questions involving the validity
of any law having regard to the provisions of the Constitution. It provides
expressly that no law shall be enacted excepting such cases from the appel¬
late jurisdiction of the Supreme Court. There is an express provision in the
Brazilian Constitution of 1891 and 1926 (Articles 59 and 60). In Argentine,
Article 100 of the Constitution (1860) has been interpreted as conferring
such powers upon the Supreme Court Such is the case also in Venezuela
(Article 83 of the Constitution of 1901); in Haiti (Article 99 of the Consti¬
tution of 1918); Honduras (Article 135 of the Constitution of 1925); and
in Nicaragua, (Article 122 of the Constitution of 1911). There are similar
provisions in Articles 1 and 2 of the Constitution of Czechoslovakia (1920);
and in the Austrian Constitution of 1920 (Article 140); Spanish Constitution
of 1932 established in Article 121 a Court of Constitutional Guarantees which
had jurisdiction, inter alia, to hear appeals on the ground of unconstitution¬
ality of laws and for the protection of individual guarantees. The appeal
was open, among others, to every individual, even if not directly affected.
Similar provision is made in Article 103 of the Constitution of Rumania
(1923). In most of these countries where the system of the prerogative
writs do not appear to be in vogue, the matter, it appears, can only be brought
before the Supreme Court by proceedings both costly and tardy.
5. Judicial review of unconstitutional acts is expressly excluded in the
Belgian Constitution of 1931; in the Italian Constitution of 1921; in the
Constitution of Peru (1920) ; Guatemala (1879); in Paraguay (1870); in
Ecuador (1906). Except the Belgian Constitution the others were framed at
a time when the English model was supposed to be an ideal one. Even
the Simon Commission in 1930 stated:
We are aware that such provisions have been inserted in many constitutions,
notably in those of the European States formed after the war. Experience,
however, has not shown them to be of any great practical value. Abstract
declarations are useless, unless there exist the will and the means to make
them effective.
But the English precedent is based on a misconception. According to the
constitutional doctrine adopted in Great Britain the supremacy of the
Parliament is absolute. But prerogative writs have become part of the
positive law to such an extent that the Parliament would never dream of
overriding or abrogating them. The British Courts with strong traditions of
independence have always insisted upon their right to examine the legality
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71
or illegality of any executive action brought before them. The Nehru
Report, the Karachi Resolution on Fundamental Rights and the Sapru
Report show that the Indian political outlook has always insisted on
f undamen tal rights being included in the constitution. The Cabinet Mission’s
Statement has accepted the necessity of including fundamental rights in the
Indian Constitution.
6. The essential conditions for an effective guarantee of fundamental
rights are:
(a) Enforceability must be the essence of any instrument defining fun*
damental rights and duties ;
(b) A person or a State under an obligation cannot claim the right to
determice whether he would comply with the obligation and if so
to what extent;
(c) The observance iff the fundamental rights and duties must be deter¬
mined by a procedure and a machinery common to the Union as
a whole;
(d) Limitations to such law whenever necessary must only be imposed
by the law of the Union.
7. If the fundamental rights and duties have to be legally enforceable,
adequate and speedy remedies in the nature of judicial review have to be
provided. As a matter of experience rights guaranteed by constitutions like
the Weimar Constitution and the Minority Treaties and even by the League
of Nations, remained ineffective for want of such remedies. On the other
hand the fundamental rights in the U. S. A. and the civil liberties in Great
Britain have been preserved by reason of two factors: (a) an independent
judiciary; and (b) the prerogative writs of habeas corpus, mandamus, pro¬
hibition, certiorari and quo warranto.
8. A comprehensive writ of habeas corpus expressly finds a place in the
Constitution of Ireland (Article 6) and that of the U.S.A. [Article I, Section
9(2)]. In Commonwealth countries other writs are issued. The writ of
Amparo is provided for by Article 107 of the Constitution of Mexico (1917).
It blends the elements of the writs of habeas corpus, certiorari, mandamus,
and its use is stated to be most extensive. Curiously, however, it does not
permit any general statement of law but allows individual relief on the basis
of the court’s view of what the law is; at best, a very unsatisfactory way
of dealing with fundamental rights.
9. Civil liberties in British India can also be traced ultimately to the fact
that the charter of the Supreme Court of Calcutta, the first High Court in
the country, drafted by Sir Elijah Impey, gave it the wide power of issuing
prerogative writs in the like manner as the King’s Bench Division in England.
In this connection it is to be noted that only the High Courts of Madras,
Calcutta and Bombay are vested with the power to issue within their original
jurisdiction these writs, by virtue of their being courts of record and by
virtue of Section 45 of the Specific Relief Act which only applies to them.
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FRAMING OF INDIA’S CONSTITUTION
There is no such power vested in these High Courts in respect of the mofussil
and no such power at all in the other High Courts with the result that
except in these three Presidency towns the machinery for enforcing the
rights is the tardy remedy of a suit and the public conscience is not keenly
alive to the assertion of rights against the executive.
10. In India, however, with the traditions of the King’s Beach which the
High Courts as courts of record have inherited there has grown up a very
strong tradition of these prerogative writs. In recent years, these writs
(including that of habeas corpus under Section 491 of the Cr. P. C.) have
been utilised for controlling the arbitrary actions of the executive and
quasi-judicial bodies which are being multiplied under modern gov¬
ernment. They have been utilised for establishing civil liberty against the
detention powers under the Defence of India Act [Keshav Taipade v. Em¬
peror 1943 F. L. R. 49 ; 46 Bom. L, R. 22 (P. C.); Basant Chandra Ghose
v. King Emperor (1945) VIII F. L. J. p. 40 (P. C.); Emperor v. Sibnath
Bannerji & Others (1945) VIII F. L. J. p. 222 (P. C.)]; for testing the valid¬
ity of summary courts and procedure [King Emperor v. Bansori Lai Sarma
& Others (1945) VIII F. L. J. 1 (P. C.)]. Prohibition and certiorari have been
used to test the validity of orders under the Defence of India Act ( Lady
Dinshaw Petit v. Noronha 47 Bom. L. R. 500; Jiggilal Kamlapat v. Col¬
lector of Bombay 47 Bom. L. R. p. 1070; Tan Bug Tein v. Collector of
Bombay 47 Bom. L. R. p. 1010); under the Revenue Acts ( Dinshaw v.
Commissioner of Income Tax, Central, 45 Bom. L. R. 31); and even the
action of a provincial government in taking over a municipality [Re.
Banwarilal Roy (1944) 48 C. W. N. 766].
11. A typical instance was Pardiwala’s case reported in A. /. R. 1944
Lahore p. 196. A petition was filed in the High Court of Lahore for a
writ of habeas corpus for Mr. Jaiprakash Narain. Mr. Pardiwala, Bar-at-
Law from Bombay went to Lahore for the purpose. He was arrested in the
court premises and detained and the detention of Mr. Jaiprakash Narain
was converted from one under the Defence of India Act into one under
Act III of 1818 taking away the court’s power to issue habeas corpus.
Even Mr. Pardiwala’s petition to the High Court for a writ of habeas corpus
was withheld by the Police Superintendent. Mr. Pardiwala then obtained a
rule for contempt against the police officers which was upheld. But foi
these speedy remedies provided by habeas corpus and contempt there
would have been no relief.
12. If writs of the constitution are not provided people will have to subject
themselves to the loss of valuable rights before the constitutionality of the
Act of a government is tested in a suit, which might take years to be finally
decided. It is also of the highest importance that the question whether a
law is valid or not must be decided at the earliest moment Any uncertainty
about its validity will lead to great hardships. The object of the fundamen¬
tal law will be frustrated if people have to serve sentences, pay fines or deny
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73
themselves the privileges given by the constitution for a long time under an
invalid law. Without such prompt remedies election laws may be so
narrowed down as to endanger free election and thereby suppress demo¬
cracy. Lastly, if the constitutional rights and the power to punish disobe¬
dience erf the court’s order in contempt proceedings are not given by consti¬
tutional law, the State law may alter the effect erf the fundamental rights to
such an extent as to make than ineffective. Without such prompt machinery
of enforcement, therefore, the Union and State Governments might con¬
ceivably lapse into a programme inimical to freedom.
13. The existence of a legal right in the constitution must necessarily imply
a right in the individual to intervene in order to make the legal right
effective. The writs of mandamus in its English form, the writs of prohibi¬
tion, certiorari, quo warranto and habeas corpus, and the power to commit
the offenders for contempt of court must therefore appropriately form part
of this chapter.
Draft Articles
articlb i
(1) Unless otherwise expressly qualified by this Constitution all citizens
of the Union are under and by virtue of this Constitution equally entitled
to all the rights and subject to all the duties described in this chapter through¬
out the territories of the Union.
(2) In this chapter ‘right’ includes ‘power’, ‘privilege’ or ‘immunity’ and
the right to enforce the same according to the remedies mentioned in this
chapter or otherwise, ‘duty’ includes ‘liability’ and ‘obligation’ and words
importing masculine gender only include the feminine gender.
(3) Fundamental rights and duties shall mean the rights and duties in
this chapter.
(4) All existing law or usage in force within the territories of the Union
inconsistent with the fundamental rights and duties shall stand abrogated
to the extent of such inconsistency, nor shall any such right or duty be taken
away, abridged or modified save as provided in this chapter by legislative
action of the Union or a State or otherwise.
(5) No restriction on fundamental rights may be imposed unless in the
manner provided by this chapter and unless it is general in character and
applicable to all persons within the same class and must be in the interest erf:
(a) public order, morality, or health and general welfare;
(b) the correlative duty to respect the rights of others; and
(c) national defence.
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ARTICLB II
Citizenship
(1) (a) All persons bom in India, (b) and all other persons who have
acquired Indian nationality, and (c) persons bom of Indian parents abroad,
and subject to the jurisdiction of the Union, are Indian nationals and citizens
both of the Union and the State wherein they reside:
Provided that persons who are citizens of or domiciled in, another State
not a member of the Union, either of their own will or by acceptance erf
the law of such a State, shall not be citizens of the Union.
(2) Nationality in the Union and in the States is acquired and terminated
by the law of die Union:
Provided that no person shall be deprived of his nationality by way of
punishment or deemed to have lost nationality except concurrently with the
acquisition of a new nationality.
article m
Right to Equality
(1) All persons irrespective of religion, race, colour, caste, language or sex
are equal before the law and are entitled to the same rights, and are subject
to the same duties.
(2) All citizens are entitled to equal opportunities in all spheres, political,
economic, social and cultural.
(3) Women citizens are the equal of men citizens in all spheres of politi¬
cal, economic, social and cultural life and are entitled to the same civil
rights and are subject to the same civil duties unless where exception is
made in such rights or duties by the law of the Union on account of sex.
(4) (a) Untouchability is abolished and the practice thereof is punishable
by the law of the Union.
(b) All persons shall have the right to the enjoyment of equal facilities
in public places subject only to such laws as impose limitations on all
persons irrespective of religion, race, colour, caste or language.
(3) All citizens are entitled to equal opportunity :
(a) in matters of public employment and office of power and honour;
(b) in the exercise of trade, profession or calling ; and
(c) in the exercise of franchise according to the law of the Union;
and no citizen shall be denied the right on grounds of religion, race, colour,
caste or language.
(6) All citizens of the Union have the right to reside in any part of the
territories of the Union that they choose, to settle there, acquire property,
and pursue any means of lawful occupation, subject only to the restrictions
imposed by the law of the Union.
(7) Every citizen has the right to emigrate to countries outside the Union
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75
and the right of expatriation.
(8) All citizens within and without the territories of the Union are
entitled to the protection of the Union.
(9) No citizen may be handed over to a foreign government for trial or
punishment
(10) No person shall be denied equal protection of the laws within the
territories of the Union.
ARTICLB IV
National Language
(1) Hindustani, including Hindi and Urdu shall be the national language
of the Union written at the choice of a citizen in the Nagati or Persian
characters.
(2) It shall be competent to the Union by law to declare that all official
or educational medium in any State or a part thereof shall be Hindustani
in addition to any other language.
ARTICLB V
Rights to Freedom
(1) Every citizen within the limits of the law of the Union and in accord¬
ance therewith has :
(a) the right of free expression of opinion;
(b) the right of free association and combination;
(c) the right to assemble peacefully and without arms;
(d) the right to personal liberty;
(e) the right to be informed within twenty-four hours of his deprivation of
liberty by what authority and on what grounds he is being so deprived ;
(f) the right to the inviolability of his home;
(g) the right to the secrecy of his correspondence;
(h) the right to maintain his person secure by the law of the Union from
exploitation in any manner contrary to law or public morality; and
(i) the right of free movement and trade within the territories of the
Union.
(2) The press shall be free subject to such restrictions imposed by the law
of the Union as in its opinion may be necessary in the interest of public
order or morality.
(3) The conduct of research and/or the publication of the results thereof
shall be free subject to the restrictions imposed by the law of the Union
in the interests of a fair return to those responsible for the results and of
national defence.
(4) No person shall be deprived of his life, liberty or property without
due process of law.
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FRAMING OF INDIA’S CONSTITUTION
(5) Every citizen has the right to choose the government and legislators
of the Union and his State on the footing of equality, in accordance with
the law of the Union or the unit as the case may be, in free, secret and
periodic elections.
ARTICLB VI
The Right to Religious and Cultural Freedom
(1) All citizens are equally entitled to freedom of conscience and to the
right freely to profess and practise religion in a manner compatible with
public order, morality or health:
Provided that the economic, financial or political activities associated with
religious worship shall not be deemed to be included in the right to pro*
fess or practise religion.
(2) All citizens are entitled to cultural freedom, to the use of their mother
tongue and the script thereof, and to adopt, study or use any other language
and script of their choice.
(3) Citizens belonging to national minorities in a State whether based on
religion or language have equal rights with other citizens in forming, con¬
trolling and administering at their own expense, charitable, religious and
social institutions, schools and other educational establishments with the free
use of their language and practice of their religion.
(4) No person may be compelled to pay taxes the proceeds of which are
specifically appropriated in payment of religious requirements of any com¬
munity of which he is not a member.
(5) Religious instruction shall not be compulsory for a member of a
community which does not profess such religion.
(6) No person under the age of eighteen shall be free to change his reli¬
gious persuasion without the permission of his parent or guardian.
(7) Conversion from one religion to another brought about by coercion,
undue influence or the offering of material inducement is prohibited and
is punishable by the law of the Union.
(8) It shall be the duty of every unit to provide, in the public educational
system in towns and districts in which a considerable proportion of citizens
of other than the language of the unit are residents, adequate facilities for
ensuring that in the primary schools the instruction shall be given to
the children of such citizens through the medium of their own language.
Nothing in this clause shall be deemed to prevent the unit from making
the teaching of the national language in the variant and script of the choice
of the pupil obligatory in the schools.
(9) No legislation providing State-aid for schools shall discriminate against
schools under the management of minorities whether based on religion or
language.
(10) Every monument of artistic or historic interest or place of natural
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interest throughout the Union is guaranteed immunity from spoliation,
destruction, removal, disposal or export except under a law of the Union,
and shall be preserved and maintained according to the law of the Union.
article vu
Right of Workers
(1) All workers industrial or otherwise are entitled to be secured to them
by suitable legislation and economic organization and in other ways, work,
living wage, condition of work necessary to ensure decent standard of life
and full enjoyment of leisure and social and cultural opportunities.
(2) Workers are entitled to be protected by legislation providing for insurance
against the consequence of sickness, old age, unemployment or disablement
OR
All workers are entitled as against a unit to public assistance in case of
unemployment, old age, sickness, disablement and other cases of undeserved
want, within the limits of the economic capacity and development of each State.
(3) Every form of slavery or traffic in human beings or compulsory labour
other than public service equally incumbent upon all or as part of the
punishment pronounced by a court of law is abolished and if such form of
traffic or labour is enforced it shall be punishable by the law erf the Union.
(4) No woman worker shall be employed in industries unsuited to
women and in respect of maternity benefits.
(5) Child labour in all forms is prohibited and employment of children for
any purpose whatever shall not be permitted except under conditions pres¬
cribed by the law of the Union.
(6) Every producer of a work of intellectual industry, art or discovery or
invention shall have a property therein unless he has been specifically em¬
ployed on such work for remuneration.
articlb vm
Right to Education
(1) Every citizen is entitled to have free primary education and it shall
be legally incumbent on every unit of the Union to introduce free and com¬
pulsory primary education upto the age of 14 years and in the case of adults
upto the standard of literacy.
(2) The duration, limits, and method of primary education shall be fixed
by law.
(3) E\ery citizen is entitled to have facilities provided for learning the
national language in the variant and script of his choice.
(4) The opportunities of education must be open to all citizens upon equal
terms in accordance with their natural capacities and their desire to take
advantage of the facilities available.
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FRAMING OF INDIA’S CONSTITUTION
ARTICLE IX
Social Rights and Duties
(1) Usury is prohibited.
(2) (a) Every person is entitled to compensation for wrongful or ultra
vires acts of officers of the Union or States or local Governments.
(b) The Union, the State or the local Government, as the case may be,
shall be jointly liable with the officer concerned.
(c) Previous authorisation for pursuing any legal remedy for such
compensation shall not be prescribed.
(d) The Union, by law, shall prescribe the regulation of this right.
ARTICLB X
Right to Property
(1) The right to property is guaranteed by this Constitution to all citizens,
corporations, and bodies, social, economic and religious.
(2) ‘Property’ in Section 1 shall include immovable property and any
rights in or over such property or any undertaking run for profit or any
interest in or in any company owning any such undertaking.
(3) No soldier, in time of peace, be quartered in any house, without the
consent of the owner and in time of war except in a manner prescribed by
the law of the Union.
(4) Expropriation for public reasons only shall be permitted upon condi¬
tions determined by law and in return for just and adequate consideration
determined according to principles previously laid down by it.
(5) The right to private property includes the right to the free disposal of
property subject however to limitations imposed by law or usage in the
interests of such of the owners as are not capable of looking after their
interests.
ARTICLB XI
Right to Freedom of Family Relations
(1) Every person has the right to be free from interference in his family
relations.
(2) No marriage valid according to the law of the Union or a State, shall
be dissolved unless permitted by the law of the Union or the law of the
State concerned and in accordance with the forms and under the conditions
of the State concerned.
ARTICLB xn
Special Rights
(1) No punishment may be inflicted for any act unless the act was desig¬
nated as punishable before it was committed.
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(2) No person shall be tried for the same offence more than once and
he shall not be compelled in any criminal case to be a witness against him¬
self ; nor shall the burden of proving his innocence be thrown on him.
(3) No person shall be subjected to prolonged detention preceding trial,
to excessive bail, or unreasonable refusal thereof or to inhuman or cruel
punishment or be denied adequate safeguards and procedure.
(4) No civil or criminal court shall, in adjudicating any matter or executing
any order recognise any custom or usage imposing any civil disability
on any person on the ground of his caste, status, religion, race or language.
(5) No person shall be imprisoned or held in servitude in consequence of a
breach of contract
(6) Full faith and credit shall be given throughout the territories of the
Union to the public acts, records and judicial proceedings of the Union and
every unit thereof, and the manner in which such acts, records and proceed¬
ings shall be proved and the effect thereof determined shall be prescribed
by the law of the Union.
(7) (a) Notwithstanding any custom or usage or prescription, all Hindus
without any distinction of caste or denomination shall have the right of
access to and worship in all public Hindu temples, choultries, dharmashaHas,
bathing ghats, and other religious places.
(b) Rules of personal purity and conduct prescribed for admission to
and worship in these religious places shall in no way discriminate against or
impose any disability on any person on the ground that he belongs to an
impure or inferior caste or menial class.
ARTICLE xm
Right to Constitutional Remedies
(1) Every citizen has the fundamental right, in addition to his right, by
himself or a representative, to move the courts within the Union for the
issue of a writ of right.
(2) The following are the wits of right, viz.,
(a) The writ of person (habeas corpus) to secure the release of any
person in die territories of the Union from unlawful or unjustifiable
deprivation of the right of personal liberty;
(b) The writ of enforcement (mandamus) to secure the performance of
any specific act by a unit, an officer, a corporation, in discharge of a
definite public duty, obligation or requirement with which he is speci¬
fically charged by die Constitution or any other law for the time being:
Provided that no writ shall be issued against the President or the Head
of any State or any Minister of the Union or a State personally or against
any court of law:
Provided further that no writ shall be issued unless the applicant has no
other specific adequate and equally speedy legal remedy.
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FRAMING OF INDIA’S CONSTITUTION
(c) The writ of prohibition in prohibiting any court other than the
Supreme Court, or a person or body vested with judicial functions
from continuing proceedings in contravention of this Constitution or
in excess of jurisdiction vested in it by law;
(d) The writ of direction (< certiorari ) directing any judge other than a
judge of the Supreme Court or a person or body vested with judicial
functions to transmit the record of proceedings pending before him
or it and involving a question of a right or duty arising under or
in respect of the Constitution or any question of law arising on an
interpretation thereof for the purpose of quashing the proceeding
or referring them to the appropriate tribunal.
(3) A writ of constitution may be issued at the instance of the Advocate
General of the Union or of a State or any person duly authorised in order
to safeguard one or more citizens in the free exercise of fundamental rights
or to enforce performance of a fundamental duty under this Constitution,
or to have any act or legislation declared ultra vires of the Constitution.
(4) A final appeal shall lie to the Supreme Court from any decision given
by a court in proceedings initiated by the writs.
(5) Disobedience to any order made by a competent court under this
chapter shall be enforceable by the proceedings for the contempt of such court.
(6) Any person who under colour of any law, custom, or usage or any
unit or territory subjects or causes to be subjected any citizen of the Union
or other person within the jurisdiction thereof to the deprivation of any rights
secured by the Constitution shall be liable to the party injured in a suit of law.
(7) The Union Legislature shall prescribe by law the jurisdiction of courts,
procedure, and all other incidental matters in respect of the constitutional
remedies under this article.
ARTICLE XIV
Exemptions and Qualifications
(1) No person may refuse, on the ground of religious opinion, to fulfil
any duties of citizenship, fundamental or otherwise.
(2) The requisition of the services of a citizen to meet the needs of national
defence shall not be construed as a limitation on any of the fundamental
rights or duties.
(3) Nothing in this Chapter shall be invoked to prohibit, control or inter¬
fere with any act of the Union authorities during the existence of a state of
war, armed rebellion or with the provisions of any law of the Union Legis¬
lature passed to meet a grave emergency.
(4) The Union Legislature by law shall be entitled to determine to what
extent certain fundamental rights shall be restricted or abrogated for the mem-
bos of the armed forces or forces charged with the maintenance of public order
to ensure the fulfilment of their duties and the maintenance of discipline.
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(c) Harnam Singh’s Draft on Fundamental Rights
March 18, 1947
1. All Indians are equal before the law. In India there are no subjects
nor any privileges of rank, birth, person or family. (Compare Article 4,
Swiss Confederation 1921.)
2. Every dwelling shall be inviolable. (Compare Art. 12, Czechoslovakian
Constitution, 10th Dec. 1919.)
3. The freedom rtf the press and the right to meet peaceably and without
arms and to form associations shall be guaranteed by Constitution: provided
that this would not affect the rights of the Sikhs to the carrying and the
wearing of kirpans.
4. In India there is freedom of religion and conscience. (Sapru Concilia*
tion Committee Report, page 10.)
5. All inhabitants of India shall have equal right to practise in public
or in private any faith, religion or creed whatsoever, and to assemble for
the conduct of religious service in public, in so far as the exercise of these
rights does not violate the law or public order and morality and they are
exercised with due regard to the religious sentiments at other communities.
6. All inhabitants shall be entitled to establish, manage, and administer
at their own expense, religious, charitable and social institutions, schools, and
other educational establishments and shall have the right to the free use of
their own language and script, if any, and the free exercise of their own
religion in such institutions.
Pursuant to this right they shall be entitled to acquire, own, transfer and
hold in trust, movable and immovable property, subject to the general laws
of the country. (Sapru Conciliation Committee Report, p. 240 and Polish
Constitution, Art. 110.)
7. All communities shall be free to preach their religion so far as they
do not violate the law or public order and morality, or offend the send*
ment of other communities. (Sapru Conciliation Committee Report, p. 241.)
8. No subject of the Indian Republic shall on grounds of religion, caste,
creed, place of birth or descent be ineligible for office in any part of the
Indian Republic or be prohibited on any such ground from acquiring, hold¬
ing, or disposing of property or carrying on any occupation, trade, business
or profession in any part of the Indian Republic. (Vide section 298 of the
Government of India Act, 1935.)
9. The preparation and use of Jhatka meat in public institutions shall be
allowed and Jhatka meat shall be treated on par in all respects with
Hatai meat. (Sapru Conciliation Committee Report, p. 242.)
10. No law shall be enacted and no executive order given to restrict in
any manner or extent whatsoever the manufacture, the sale, the keeping
and the wearing of kirpans by the Sikhs. (Sapru Conciliation Committee
Report, p. 242.)
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FRAMING OF INDIA’S CONSTITUTION
11. The State shall provide special educational facilities to enter public
services for Backward Classes, such as Scheduled Castes, die Aboriginal
Tribes, the Mazhabis, Ramdasis and Kabirpanthis and shall protect them
from social injustice and all forms of exploitation: Provided that all such
facilities shall be available to any member of these castes and tribes regard¬
less of religious denomination to which he may belong.
12. The recognition of untouchability shall be a crime in India.
13. All citizens have an equal right of access to and use of public wells,
reservoirs, tanks, hostels, restaurants and all other places of public resort.
(Sapru Conciliation Committee Report, p. 242.)
14. Freedom to choose one’s occupation as well as to originate enterprises
or industries of an agricultural, commercial, industrial or other nature is
guaranteed in the Republic of India. (Article 19 of the Estonian Constitu¬
tion.)
15. Religious minorities in the country shall have a right to establish
autonomous institutions for the preservation and development of their
culture and to maintain special organization with powers to levy taxes for
the maintenance and welfare of such institutions. (Compare Article 21 of
the Estonian Constitution, 5th June, 1920.)
16. The State shall protect the culture, language and script of the various
communities and linguistic areas in India.
17. The right to employ Punjabi for social and cultural intercourse and
for the conduct of official and administrative business in the Punjab shall
be guaranteed by Constitution with option to the various communities to use
their own script, if any. (Compare Art. 7 of the German Polish Constitu¬
tion.)
18. A minority school shall be established on the application of a national
supported by the persons legally responsible for the education of at least
40 children of the minority provided that these children are nationals and
that they belong to the same school district and that they are of the age
at which education is compulsory and that their parents intend to send them
to the said school. If at least 40 of these children belong to the same deno¬
mination or religion a minority school of the denominational and religious
character desired shall be established on such applications.
19. Legislative or administrative measures providing state aid for schools
shall not discriminate between schools under the management under differ¬
ent religious denominations. (Compare Irish Constitution.)
20. Sciences and the arts and the teaching thereof are unrestricted in the
Republic of India. Elementary education is obligatory and free in the
primary schools. Instruction in their own mother tongue is guaranteed to
children of religious minorities. (Art. 12 of Estonian Constitution.)
21. The State shall maintain intact all religious and charitable institutions
and the endowments attached to them, and such religious institutions or
endowments and the properties attached to them shall not be resumed or
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83
acquired by State actions, and the State shall not create by financial assist¬
ance any endowment or institution out of taxes not specifically and ex¬
clusively collected from the religious community for the benefit of which
such endowments or institutions are sought to be created.
22. In framing rules for the regulation of recruitment to the Indian Army,
the authority concerned shall have due regard to the past association of
the Sikh community with the Indian Army and particularly to the specific
class, character and numerical percentage of posts hitherto held by members
of the Sikh community in the Defence Forces of India. (Compare Section
242 of the Government of India Act, 1935.)
23. Officials may not be provisionally removed from office or provisionally
or permanently retired or transferred to another post save in accordance
with and in the manner determined by law. (Article 129 German Reich,
1919.)
24. Any question raising major communal issue in the legislature of the
Punjab shall require for its decision a majority of the representatives present
and voting of the three main communities in the Punjab as well as a
majority of all the members present and voting. (Compare para. 15 of the
Cabinet Mission Statement.)
25. The Constitution shall provide that in the passing of any bill, motion
or resolution affecting exclusively a single community members of other
communities shall not have a right of vote.
26. No decision legislative, executive, or administrative shall be taken by
the Punjab Government in regard to any matter of a controversial nature
except by majority of three-fourths. (Compare Muslim League Points sub¬
mitted to the Cabinet Mission as regards the arrangement at the Centre.)
27. (i) The Constitution Act shall provide for the establishment at the
Centre and in each of the provinces of Independent Minority Commissions,
which shall be composed of a representative each of the communities
concerned.
(ii) The functions of the commission shall be:
(a) to keep a constant watch over the interests of the minority
communities in the area;
(b) to call for such information from the Government concerned as
the commission may consider necessary for the discharging of its
functions;
(c) to review periodically the policy pursued in legislation and
administration by the legislature and the executive concerned in
regard to the implementing of non-justiciable fundamental rights
assured by the Constitution to the communities concerned and to
submit a report to the Government concerned.
(iii) The recommendations of the commission shall be considered by
the Cabinet concerned as soon as possible. In case any of the recommenda¬
tions are not accepted wholly or in part by the Cabinet concerned, the
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report shall be referred to the Federal Court for decision and the
decision on such reports taken by the Federal Court shall be
binding on the Cabinet concerned. {See Sapru Conciliation Committee
Report, p. 259 onward.)
{d) Ambedkar’s Memorandum and Draft Articles on the Rights
of States and Minorities
March 24, 1947
PROPOSBD PREAMBLE
We the people of the territories of British India distributed into adminis¬
trative units called Provinces and Centrally Administered Areas and of the
territories of the Indian States with a view to form a more perfect union
of these territories do—
ordain that the Provinces and the Centrally Administered Areas (to be here¬
after designated as States) and the Indian States shall be joined together into
a Body Politic for legislative, executive and administrative purposes under
the style The United States of India and that the union so formed shall be
indissoluble, and that with a view:
(i) to secure the blessings both of self-government and good government
throughout the United States of India to ourselves and to our posterity,
(ii) to maintain the right of every subject to life, liberty and pursuit of
happiness and to free speech and free exercise of religion,
(iii) to remove social, political and economic inequality by providing
better opportunities to the submerged classes,
(iv) to make it possible for every subject to enjoy freedom from want
and freedom from fear, and
(v) to provide against internal disorder and external aggression,
establish this Constitution for the United States of India.
ARTICLE I—SECTION I
Admission of Indian States into the Union
Clause 1
The United States of India may, on application and on fulfilment of the
terms prescribed by an enabling Act of the Union Legislature laying down
the form of the Constitution admit an Indian State into the Union provided
the Indian State seeking admission is a Qualified State.
For the purposes of this clause a list of Qualified Indian States shall be
drawn up. A State shall not be deemed to be a Qualified State unless it is
proved that it is of a standard size prescribed by the Union Legislature
and is endowed with natural resources capable erf supporting a decent
standard of living for its people and can, by reason of its revenues and
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population function as an autonomous State, protect itself against external
aggression, maintain law and order against internal disturbance and
guarantee to its subjects minimum standards of administration and welfare
which are expected from a modern State.
Clause 2
The territory of an Indian State which is a Qualified State but which
has not entered the Union and the territory of the Indian States which are
disqualified shall be treated as incorporated territories erf the United States
of India and shall at all times form integral parts thereof and shall be
subject to such parts of the Constitution of the United States of India as
may be prescribed by the Union Legislature.
Clause 3
The United States of India shall have power to reform, rearrange, redis¬
tribute and amalgamate the territories of Disqualified Indian States into
suitable Administrative Units for admission into the Union as States of the
Union.
Cause 4
After a State has been admitted into the Union as a State no new State
shall be formed or created within its jurisdiction nor any new State shall
be formed by the junction of two or more States or parts of States withoul
the consent of the Legislatures of the States concerned as well as of the
Union Legislature.
ARTICLE I—SECTION II
Clause 1
The United States of India may admit into the Union any territory which
forms a natural part of India or which is on the border of India on terms
and conditions mutually agreed upon. Provided that the terms shall not
be inconsistent with the Constitution of the United States of India and the
admission is recommended by the Legislatures of one half of the States
comprising the United States of India in the form of a resolution.
Clause 2
The United States of India may acquire territory and may treat it as
unincorporated territory. The provisions of the Constitution of the United
States of India shall not apply to the unincorporated territory unless a pro¬
vision to the contrary is made by the Legislature of the United States of
India.
ARTICLE II—SECTION I
Fundamental Rights of Citizens
The Constitution of the United States of India shall recognize the
following as fundamental rights of citizenship:
7
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1. All persons born or naturalized within its territories are citizens of the
United States of India and of the State wherein they reside. Any privilege
or disability arising out of rank, birth, person, family, religion or religious
usage and custom is abolished.
2. No State shall make or enforce any law or custom which shall abridge
the privileges or immuni ties of citizens; nor shall any State deprive any
person of life, liberty and property without due process of law; nor deny
to any person within its jurisdiction equal protection of law.
3. All citizens are equal before the law and possess equal civic rights.
Any existing enactment, regulation, judgment, order, custom or interpretation
of law by which any penalty, disadvantage or disability is imposed upon or
any discrimination is made against any citizen shall, as from the day on
which this Constitution comes into operation, cease to have any effect.
4. Whoever denies to any person, except for reasons by law applicable
to persons of all classes and regardless of their social status, the full enjoy¬
ment of any of the accommodations, advantages, facilities, privileges of inns,
educational institutions, roads, paths, streets, tanks, wells and other watering
places, public conveyances on land, air or water, theatres or other places
of public amusement, resort or convenience, where they are dedicated to or
maintained' or licensed for the use of public, shall be guilty of an
offence.
5. All citizens shall have equal access to all institutions, conveniences
and amenities maintained by or for the public.
6. No citizen shall be disqualified to hold any public office or exercise
any trade or calling by reason of his or her religion, caste, creed, sex or
social status.
7. (i) Every citizen has the right to reside in any part erf India. No
law shall be made abridging the right of a citizen to reside except for con¬
sideration of public order and morality.
(ii) Every citizen has the right to settle in any part of India, subject to
the production of a certificate of citizenship from the State of his origin.
The permission to settle shall not be refused or withdrawn except on
grounds specified in sub-clause (iv) of this clause.
(iii) The State in which a citizen wishes to settle may not impose any
special charge upon him in respect of such settlement other than the charge
imposed upon its own inhabitants. The maximum fees chargeable in respect
of permits for settlement shall be determined by laws made by the Union
Legislature.
(iv) The permission to settle may be refused or withdrawn by a State
from persons :
(a) who have been habitual criminals;
(b) whose intention to settle is to alter the communal balance of the
State;
(c) who cannot prove to the satisfaction of the State in which they
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87
wish to settle that they have an assured means of subsistence and
who are likely to become or have become a permanent burden upon
public charity;
(d) whose State of origin refuses to provide adequate assistance for
them when requested to do so.
(v) Permission to settle may be made conditional upon the applicant
being capable of work and not having been a permanent charge upon public
charity in the place of his origin, and able to give security against unemploy¬
ment.
(vi) Every expulsion must be confirmed by the Union Government.
(vii) The Union Legislature shall define the difference between settle¬
ment and residence and at the same time prescribe regulations governing
the political and civil rights of persons during their residence.
8. The Union Government shall guarantee protection against persecution
of a community as well as against internal disorder or violence arising in
any part of India.
9. Subjecting a person to forced labour or to involuntary servitude shall
be an offence.
10. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
11. The right of a citizen to vote shall not be denied or abridged on any
account other than immaturity, imprisonment and insanity.
12. No law shall be made abridging the freedom of speech, of the press,
erf association and of assembly except for consideration erf public order
and morality.
13. No Bill of attainder or ex post facto law shall be passed.
14. The State shall guarantee to every Indian citizen liberty of conscience
and the free exercise of his religion including the right to profess, to preach
and to convert within limits compatible with public order and morality.
15. No person shall be compelled to become a member of any religious
association, submit to any religious instruction or perform any act of reli¬
gion. Subject to the foregoing provision, parents and guardians shall be
entitled to determine the religious education of children up to the age of
sixteen years.
16. No person shall incur any penalties of any kind whatsoever by rea¬
son of his caste, creed or religion nor shall any person, be permitted to
refuse to fulfil any obligation of citizenship on the ground of caste, creed
or religion.
17. The State shall not recognize any religion as State religion.
18. Persons following a religion shall be guaranteed freedom erf association
and shall have, if they so desire, the right to call upon the State to
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FRAMING OF INDIA’S CONSTITUTION
pass legislation in terms approved by them making them into a body
corporate.
19. Every religious association shall be free to regulate and administer
its affairs, within the limits of the laws applicable to all.
20. Religious associations shall be entitled to levy contributions on their
members who are willing to pay them if their law of incorporation permits
them to do so. No person may be compelled to pay taxes the proceeds
of which are specifically appropriated for the use of any religious commu¬
nity of which he is not a member.
21. All offences under this section shall be deemed to be cognizable
offences. The Union Legislature shall make laws to give effect to such
provisions as require legislation for that purpose and to prescribe punish¬
ment for those acts which are declared to be offences.
ARTICLE n—SECTION II
Remedies against invasion of Fundamental Rights
The United States of India shall provide :
Cause I
(1) That the judicial power of India shall be vested in a Supreme Court.
(2) The Supreme Court shall have the power of superintendence over all
other courts or officers exercising the powers of a court, whether or not
such courts or officers are subject to its appellate or re visional jurisdiction.
(3) The Supreme Court shall have the power on the application of au
aggrieved party to issue what are called prerogative writs such as habeas
corpus, quo warranto, prohibition, certiorari and mandamus, etc. For
purposes of such writs the Supreme Court shall be a court of general
jurisdiction throughout India.
(4) The right to apply for a writ shall not be abridged or suspended
unless when in cases of rebellion or invasion the public safety may
require it.
Cause 2
That the authority of the Legislature and the Executive of the Union as
well as of every State throughout India shall be subject to the following
(imitations :
It shall not be competent for any Legislature or Executive in India to
pass a law or issue an order, rule or regulation so as to violate the follow¬
ing rights of the subjects of the State :
(1) to make and enforce contracts, to sue, be parties, and give evidence,
to inherit, purchase, lease, sell, hold and convey real and personal property;
(2) to be eligible for entry into the civil and military employ and to all
educational institutions except for such conditions and limitations as may
be neoessary to provide for the due and adequate representation of all
classes of the subjects of the State;
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(3) to be entitled to the full and equal enjoyment of the accommodations,
advantages, facilities, educational institutions, privileges of inns, rivers,
streams, wells, tanks, roads, paths, streets, public conveyances on land, air
and water, theatres and other places of public resort or amusement except
for such conditions and limitations applicable alike to all subjects of every
race, class, caste, colour or creed;
(4) to be deemed fit for and capable of sharing without distinction the
benefits of any religious or charitable trust dedicated to or created, main¬
tained or licensed for the general public or for persons of the same faith
and religion;
(5) to claim full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by other subjects regardless
of any usage or custom or usage or custom based on religion and be sub¬
ject to like punishment, pains and penalties and to hone other.
Clause 3
(1) Discrimination against citizens by Government officers in public
administration or by private employers in factories and commercial con¬
cerns on the ground of race or creed or social status shall be treated as
an offence. The jurisdiction to try such cases shall be vested in a tribunal
to be created for the purpose.
(2) The Union. Legislature shall have the right as well as the obligation
to give effect to this provision by appropriate legislation.
Clause 4
The United States of India shall declare as a part of the law of its Conr
stitution :
(1) That industries which are key industries or which may be declared
to be key industries shall be owned and run by the State;
(2) That industries which are not key industries but which are basic
industries shall be owned by the State and shall be run by the State or by
corporations established by the State;
(•3) That insurance shall be a monopoly of the State and that the State
shall compel every adult citizen to take out a life insurance policy commen¬
surate with his wages as may be prescribed by the Legislature;
(4) That agriculture shall be a State industry;
(5) That the State shall acquire the subsisting rights in such industries,
insurance and agricultural land held by private individuals, whether as
owners, tenants or mortgagees and pay them compensation in the form of
debenture equal to the value erf his or her right in the land. Provided that
in reckoning the value erf land, plant or security no account shall be taken
of any rise therein due to emergency, of any potential or unearned value or
any value for compulsory acquisition;
(6) The State shall determine how and when the debenture holder shall
be entitled to claim cash payment;
(7) The debenture shall be transferable and inheritable property but
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FRAMING OF INDIA’S CONSTITUTION
neither the debenture holder nor the transferee from the original holder nor
his heir shall be entitled to claim the return of the land or interest in any
industrial concern acquired by the State or be entitled to deal with it in
any way;
(8) The debenture holder shall be entitled to interest on his debenture
at such rate as may be defined by law, to be paid by the State in cash or
in kind as the State may deem fit;
(9) Agricultural industry shall be organized on the following basis :
(i) The State shall divide the land acquired into farms of standard
size and let out the farms for cultivation to residents of the village
as tenants (made up of group of families) to cultivate on the follow¬
ing conditions :
(a) The farm shall be cultivated as a collective farm;
(b) The farm shall be cultivated in accordance with rules and
directions issued by Government;
(c) The tenants shall share among themselves in the manner pre¬
scribed the produce of the farm left after the payment of charges
properly leviable on the farm;
(ii) The land shall be let out to villagers without distinction of caste or
creed and in such manner that there will be no landlord, no tenant
and no landless labourer ;
(iii) It shall be the obligation of the State to finance the cultivation
of the collective farms by the supply of water, draft animals, imple¬
ments, manure, seeds, etc.;
(iv) The State shall be entitled to—
(а) to levy the following charges on the produce of the farm :
(i) a portion for land revenue;
(ii) a portion to pay the debenture holders; and
(iii) a portion to pay for the use of capital goods supplied; and
(б) to prescribe penalties against tenants who break the conditions of
tenancy or wilfully neglect to make the best use of the means erf
cultivation offered by the State or otherwise act prejudicially to the
scheme erf collective farming ;
(10) The scheme shall be brought into operation as early as possible but
in no case shall the period extend beyond the tenth year from the date of
the Constitution coming into operation.
ARTICLE II—SECTION III
Provisions for the protection of minorities
The Constitution of the United States of India shall provide :
Clause 1
(1) That the Executive—Union or State—shall be non-Parliamentary in
the sense that it shall not be removable before the term erf the Legislature.
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(2) Members of the Executive if they are not members of the Legisla¬
ture shall have the right to sit in the Legislature, speak, vote and answer
questions.
(3) The Prime Minister shall be elected by the whole House by single
transferable vote.
(4) The representatives of the different minorities in the Cabinet shall be
elected by members of each minority community in the Legislature by single
transferable vote.
(5) The representatives of the majority community in the Executive shall
be elected by the whole House by single transferable vote.
(6) A member of the Cabinet may resign his post on a censure motion
or otherwise but shall not be liable to be removed except on impeachment
by the House on the ground of corruption or treason.
Clause 2
(1) That there shall be appointed an Officer to be called the Superinten¬
dent of Minority Affairs.
(2) His status shall be similar to that of the Auditor-General appointed
under section 166 of the Government of India Act of 1935 and removable
in like manner and on the like grounds as a judge of the Supreme Court.
(3) It shall be the duty of the Superintendent to prepare an annual report
on the treatment of minorities by the public, as well as by the Governments,
Union and State, and of any transgressions of safeguards or any miscarriage
of justice due to communal bias by Governments or their officers.
(4) The annual report of the Superintendent shall be placed cm the
Table of the Legislatures, Union and State, and the Governments, Union
and State, shall be bound to provide time for the discussion of the
report.
Clause 3
(1) The social boycott, promoting or instigating a social boycott or threat¬
ening a social boycott as defined below shall be declared to be an
offence.
(i) Boycott Defined .—A person shall be deemed to boycott another who—
(а) refuses to let or use or occupy any house or land, or to deal with,
work for hire, or do business with another person, or to render to
him or receive from him any service, or refuses to do any of the said
things on the terms on which such things should commonly be done
in the ordinary course of business, or
(б) abstains from such social, professional or business relations as he
would, having regard to such existing customs in the community
which are not inconsistent with any fundamental right or other rights
of citizenship declared in the Constitution, ordinarily maintain with
such person, or
(c) in any way injures, annoys or interferes with such other person in
the exercise of his lawful rights.
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(ii) Offence of boycotting. —Whoever, in consequence of any person having
done any act which he was legally entitled to do or of his having omit*
ted to do any act which he was legally entitled to omit to do, or with
intent to cause any person to do any act which he is not legally bound to
do or to omit to do any act which he is legally entitled to do, or with
intent to cause harm to such person in body, mind, reputation or property,
or in his business or means of living, boycotts such person or any person
in whom such person is interested, shall be guilty of the offence of boy¬
cotting:
Provided that no offence shall be deemed to have been committed under
this section, if the court is satisfied that the accused person has not acted
at the instigation of or in collusion with any other person or in pursuance
of any conspiracy or of any agreement or combination to boycott.
(iii) Offence of instigating or promoting a boycott. —Whoever—
(a) publicly makes or publishes or circulates a proposal for, or
(b) makes, publishes or circulates any statement, rumour or report
with intent to, or which he has reason to believe to be likely to
cause, or
(c) in any other way instigates or promotes the boycotting of any
person tv class of persons,
shall be guilty of the offence of instigating or promoting a boycott.
Explanation. —An offence under this clause shall be deemed to have been
committed although the person affected or likely to be affected by any
action of the nature referred to herein is not designated by name or class
but only by his acting or abstaining from acting in some specified manner.
(iv) Offence of threatening a boycott. —Whoever, in consequence of any
person having done any act which he was legally entitled to do or of his
having omitted to do any act which he was legally entitled to omit to do,
or with intent to cause any person to do any act which he is not legally
bound to do, or to omit to do any act which he is legally entitled to do,
threatens to cause such person or any person in whom such person is
interested, to be boycotted shall be guilty of the offence threatening a boy¬
cott.
Exception .—It is not boycott—
(i) to do any act in furtherance of a bona fide labour dispute;
(ii) to do any act in the ordinary course Of business competition.
(2) All these offences shall be deemed to be cognizable offences. The
Union Legislature shall make laws prescribing punishment for these
offences.
Clause 4
That the power of the Central and Provincial Governments to make
grants for any purpose, notwithstanding that the purpose is not one for
which the Union or State Legislature as the case may be may make laws,
shall not be abridged or taken away.
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ARTICLE II—SECTION IV
Safeguards for the Scheduled Castes
Part I. Guarantees
The Constitution of the United States of India shall guarantee to the
Scheduled Castes the following rights:
Clause 1
Right to Representation in the Legislature
(1) Quantum of Representation. —(a) (i) The Scheduled Castes shall have
minimum representation in the Legislature—Union and State—and if there
be a group Constitution then in the group Legislature equal to the ratio
of their population to the total population, provided that no other minority
is allowed to claim more representation than what is due to it on the basis
of its population.
(ii) The Scheduled Castes of Sind and the N.WP. Province shall be given
their due share of representation.
(iii) Weightage where it becomes necessary to reduce a huge communal
majority to reasonable dimensions shall come out of the share of the major¬
ity. In no case shall it be at the cost of another minority community.
(iv) Weightage carved out from the share of majority shall not be assigned
to one community only. But the same shall be divided among all minority
communities equally or in inverse proportion to their
(1) economic position,
(2) social status, and
(3) educational advance.
(h) There should be no representation to special interests. But if the
same is allowed it must be taken out of the share of representation given
to that community to which the special interest belongs.
(2) Method of Election —
(A) For Legislative Bodies
( a ) The system of election introduced by the Poona Pact shall be
abolished.
(b) In its place, the system of Separate Electorates shall be substituted.
(c) Franchise shall be adult franchise.
(d) The system of voting shall be cumulative.
(B) For Local Bodies
The principles for determining the quantum of representation and the
method of election for municipalities and local boards shall be the same
as that adopted for the Union and State Legislatures.
Clause 2
Right to Representation in the Executive
(1) The Scheduled Castes shall have minimum representation in the Exe¬
cutive—Union and State—and if there be a group Constitution then iu
the group Executive equal to the ratio of their population to the total
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population provided that no minority community is allowed to claim more
than its population ratio.
(2) Weightage where it becomes necessary to reduce a huge majority to
reasonable dimensions shall come out of the share of the majority com¬
munity. In no case shall it be at the cost of another minority community.
(3) Weightage carved out from the share of the majority shall not be
assigned to one community only. But the same shall be divided among all
minorities equally or in inverse proportion to :
(i) their economic position,
(ii) social status, and
(iii) educational advance.
Clause 3
Right to Representation in the Services
(а) The quantum of representation of the Scheduled Castes in the
Services shall be as follows :
(i) In the Union Services. —In proportion to the ratio of their popula¬
tion to the total population in India or British India as the case may
be.
(ii) In the State and_ Group Services .—In proportion to their popula¬
tion in the State or Union.
(iii) In the Municipal and Local Board Services. —In proportion to
their population in the Municipal and Local Board areas:
Provided that no minority community is allowed to claim more than its
population ratio of representation in the services.
(б) Their right to representation in the Services shall not be curtailed
except by conditions relating to minimum qualifications, education, age,
etc.
(c) The conditions prescribed for entry in services shall not abrogate
any of the concessions given to the Scheduled Castes by the Government
of India in their Resolutions of 1942 and 1945.
(d) The method of filling up the vacancies shall conform to the rules
prescribed in the Government of India Resolutions of 1942 and 1946.
(e) On every Public Services Commission or committee constituted
for filling vacancies, the Scheduled Castes shall have at least one
representative.
Part II. Special Responsibilities
That the United States of India shall undertake the following special
responsibilities for the betterment of the Scheduled Castes :
Clause 1
(1) Governments—Union and State—shall be required to assume finan¬
cial responsibility for the higher education of the Scheduled Castes and shall
be required to make adequate provisions in their budgets. Such provisions
shall form the first charge on the Education Budget of the Union and State
Governments.
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(2) The responsibility for finding money for secondary and college educa¬
tion of the Scheduled Castes in India shall be upon the State Governments
and the different States shall make a provision in their annual budgets for
the said purpose in proportion to the population of the Scheduled Castes
to the total budget of the States.
(3) The responsibility for finding money for foreign education of the
Scheduled Castes shall be the responsibility of the Union Government and
the Union Government shall make a provision of rupees ten lakhs per year
in its annual budget in that behalf.
(4) These special grants shall be without prejudice to the right of the
Scheduled Castes to share in the expenditure incurred by the State Govern¬
ment for the advancement of primary education for the people of the State.
Clause 2
1. The following provision shall be made in the constitution of the Union
Government:
(i) There shall be a Settlement Commission under the new Constitu¬
tion to hold uncultivated lands belonging to the State in trust for
settlement of the Scheduled Castes in separate villages.
(ii) The Union Government shall set apart annually a fund of Rs. 5
crores for the purpose of promoting the scheme of settlement.
(iii) That the commission shall have the power to purchase any land
offered for sale and use it for the said purpose.
2. The Union Government shall from time to time pass such legislation
as may be necessary for the commission to carry out its functions.
Part in. Sanction for Safeguards and Amendment of Safeguards
Clause 1
The Constitution of the United States of India shall provide that—
The United States of India undertakes to give the safeguards contained
in Article II, Section IV a place in the Constitution and make them a part
of the Constitutional Law of India.
Clause 2
The provisions for the Scheduled Castes shall not be altered, amended or
abrogated except in the following manner :
Any amendment or abrogation of Section IV of Article II or any part
thereof relating to the Scheduled Castes shall only be made by a resolution
passed in the manner prescribed below by the more popular chamber of
the Union Legislature.
(i) Any proposal for amendment or abrogation shall be initiated in the
form of a resolution in the more popular chamber of the Union Legislature.
(ii) No such resolution shall be moved—
(a) unless 25 years have elapsed after the Constitution has come into
operation and has been worked; and
(b) unless six months’ notice has been given to the House by the
mover of his intention to move such a resolution.
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(iii) On the passing of such a resolution, the Legislature shall be dissolved
and a new election held.
(iv) The original resolution in the form in which it was passed by the
previous Legislature shall be moved afresh in the same House of the newly
elected Union Legislature.
(v) The resolution shall not be deemed to have been carried unless it
is passed by a majority of two-thirds of the members of the House and
also two-thirds of members of the Scheduled Castes who have been returned
through separate electorates.
Part IV. Protection of Scheduled Castes in the Indian States
The Constitution of the United States of India shall provide that the
admission of the Indian States into the Union shall be subject to the
following condition:
All provisions relating to the Scheduled Castes contained in
Section IV erf Article II of the Constitution of the United States of India
shall be extended to the Scheduled Castes in the Indian States. Such
a provision in the Constitution of an Indian State shall be a condition
precedent for its admission into the Union.
Part V. Interpretation
I. —For the purposes of Article II the Scheduled Castes, as defined
in the Government of India Scheduled Caste Order, 1936, issued under the
Government of India Act, 1935, shall be deemed to be a minority.
II. —For the purposes of Article II a caste which is a Scheduled
Caste in one State shall be treated as Scheduled Caste in all States of
the Union.
APPENDIX I
EXPLANATORY NOTES
Preamble
The Preamble gives constitutional shape and form to the Resolution on Objec¬
tives passed by the Constitutent Assembly on Wednesday the 22nd January 1947.
Article I—Section I
Clauses 1—4
The admission of the six hundred and odd Indian States into the Union raises
many difficult questions. The most difficult of them is the one which relates to
their admission into the Union. Every Indian State is claiming to be a Sovereign
State and is demanding to be admitted into the Union in its own right. The
Indian States fall into different classes from the view of size, population, revenue
and resources. It is obvious that every State admitted into the Union as a State
must have the capacity to bear the burden of modem administration to maintain
peace within its own borders and to possess the resources necessary for the econo¬
mic advancement of its people. Otherwise, the United States of India is likely to
be encumbered with a large number of weak States which, instead of being a
help to the Central Government, will be a burden upon it The Union Govern¬
ment with such small and weak States as its units will never be able to pull its
full weight in an emergency. It is therefore obvious that it would be a grave danger
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to the future safety of India if every Indian State were admitted into the Union
without any scrutiny of its capacity to bear the burden of modem administration
and maintaining internal peace. To avoid this danger, the Article proceeds to
divide the Indian States into two classes : (1) Qualified Indian States and (2)
Unqualified Indian States. It proposes that a list of Qualified Indian States should
be drawn up as a first step in the procedure to be followed for the admission of
the Indian States into the Union. A Qualified Indian State will be admitted into
the Union on an application for admission and the fulfilment of the provisions of
the Enabling Act which the Union Legislature is authorized to pass for the pur¬
pose of requiring an appropriate form of internal Government set up within the
State which will be in consonance to the principles underlying the Constitution of
the United States of India. The territory in the occupation of the Unqualified
Indian States will be treated as the territory of the United States of India and
will be reorganized into States of suitable sizes by the United States of India. In
the meantime those who are rulers of the territory shall continue to administer the
territory under the supervision of the United States of India. The Act also declares
that the Indian territory whether in the occupation of British Indian Provinces or
of the Indian States is one and integral and will be so even though an Indian State
has not entered into the Union.
Clause 4 provides that once a State is admitted into the Union, its integrity
shall be maintained and it shall not be liable to sub-division except in accordance
with the provisions contained in the clause.
Article l—Section II
Clauses 1 and 2
Clause 1 permits the United States of India to incorporate States which are
independent but which are on the border and which desire to join the Union.
Clause 2 enables the United States of India to acquire territory and to incor¬
porate it or to treat it as separate territory.
Article 11—Section l
The inclusion of fundamental rights in the Constitution requires no justification.
The necessity of fundamental rights is recognized in all constitutions old and new.
The fundamental rights included in the Article are borrowed from the constitutions
of various countries particularly from those wherein the conditions are more or less
analogous to those existing in India.
Article II—Section II
Clause 1
Rights are real only if they are accompanied by remedies. It is no use giving
rights if the aggrieved person has no legal remedy to which he can resort when
his rights are invaded. Consequently when the Constitution guarantees rights it
also becomes necessary to make provision to prevent the Legislature and the Exe¬
cutive from overriding them. This function has been usually assigned to the
judiciary and the courts have been made the special guardians of the rights guar¬
anteed by the Constitution. The clause does no more than this. The clause
proposes to give protection to the citizen against Executive tyranny by investing the
Judiciary with certain powers of inquisition against the abuse of authority by the
Executive. This power takes the form of issue of writs. The High Courts in India
possess these powers under the Government of India Act, 1935 and under their
Letters Patent. These powers are however subject to two limitations. In the
first place the powers given by the Letters Patent are available only to the High
Courts in the Presidency towns and not to all. Secondly these powers are subject
to laws made by the Indian Legislature. Thirdly the powers given by the Govern¬
ment of India Act, 1935 are restricted and may prove insufficient for the protection
of the aggrieved person. The clause achieves two objectives : (1) to give the fullest
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power to the judiciary to issue what under the English law arc called prerogative
writs and (2) to prevent the Legislature from curtailing these powers in any
manner whatsoever.
Clause 2
It is difficult to expect that in a country like India where most persons are
communally minded those in authority will give equal treatment to those who do
not belong to their community. Unequal treatment has been the inescapable fate
of the untouchables in India. The following extract from the proceedings of the
Board of Revenue of the Government of Madras No. 723 dated 5th November,
1892, illustrates the sort of unequal treatment which is meted out to the Scheduled
Castes by Hindu Officers. Says the report :
134. There are forms of oppression only hitherto hinted at which must be at
least cursorily mentioned. To punish disobedience of Pariahs , their masters—
(a) bring false cases in the village court or in the criminal courts;
( b ) obtain, on application, from Government, waste lands lying all round the
paracheri, so as to impound the pariahs ' cattle or obstruct the way to their
temple;
(c) have mirasi names fraudulently entered in the Government account against
the paracheri ;
(d) pull down the huts and destroy the growth in the backyards;
(e) deny occupancy right in immemorial sub-tenancies ;
(/) forcibly cut the Pariahs ' crops, and on being resisted charge them with
theft and rioting;
( g ) under misrepresentations, get them to execute documents by which they
are afterwards ruined;
(A) cut off the flow of water from their fields ;
(0 without legal notice, have the property of sub-tenants attached for the
landlords' arrears of revenue.
135. It will be said there are civil and criminal courts for the redress of any
of these injuries. There are the courts indeed ; but India does not breed
village Hampdens. One must have courage to go to the courts; money to
employ legal knowledge, and meet legal expenses; and means to live during
the case and the appeals. Further most cases depend upon the decision of
the first court; and these courts are presided over by officials who are some¬
times corrupt and who generally for other reasons sympathize with the wealthy
and landed classes to which they belong.
136. The influence of these classes with the official world can hardly be
exaggerated. It is extreme with natives and great even with Europeans.
Every office, from the highest to the lowest, is stocked with their representa¬
tives. and there is no proposal affecting their interests but they can bring a
score of influence to bear upon it in its course from inception to execution.
The Punjab Land Alienation Act is another illustration of unequal treatment
of the untouchables by the Legislature.
Many other minority communities may be suffering from similar treatment at the
hands of the majority community. It is therefore necessary to have such a provision
to ensure that all citizens shall have equal benefit of laws, rules and regulations.
The provisions of clause 2 are borrowed from the Civil Rights Protection
Acts, 1866, and of March 1st, 1875 passed by the Congress of the United States
of America to protect the Negroes against unequal treatment
Clause 3
Discrimination is another menace which must be guarded against if the funda¬
mental rights are to be real rights. In a country like India where it is possible for
discrimination to be practised on a vast scale and in a relentless manner
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fundamental rights can have no meaning. The remedy follows the lines adopted
in the Bill which was recently introduced in the Congress of the U.S.A. the aim
of which is to prevent discrimination being practised against the Negroes.
Clause 4
The main purpose behind the clause is to put an obligation on the State to
plan the economic life of the people on lines which would lead to highest point
of productivity without closing every avenue to private enterprise, and also pro¬
vide for the equitable distribution of wealth. The plan set out in the clause pro¬
poses State ownership in agriculture with a collectivized method of cultivation and
a modified form of State Socialism in the field of industry. It places squarely on
the shoulders of the State the obligation to supply capital necessary for agriculture
as well as for industry. Without the supply of capital by the State neither land
nor industry can be made to yield better results. It also proposes to nationalize
insurance with a double objective. Nationalized insurance gives the individual
greater security than a private insurance firm does inasmuch as it pledges the
resources of the State as a security for the ultimate payment of his insurance
money. It also gives the State the resources necessary for financing its economic
planning in the absence of which it would have to resort to borrowing from the
money market at a high rate of interest State Socialism is essential for the rapid
industrialization of India. Private enterprise cannot do it and if it did it would
produce those inequalities of wealth which private capitalism has produced in
Europe and which should be a warning to Indians. Consolidation of holdings and
tenancy legislation are worse than useless. They cannot bring about prosperity in
agriculture. Neither consolidation nor tenancy legislation can be of any help to
the 60 millions of untouchables who are just landless labourers. Neither consoli¬
dation nor tenancy legislation can solve their problem. Only collective farms on
the lines set out in the proposal can help them. There is no expropriation of the
interests concerned. Consequently there ought to be no objection to the proposal
on that account
The plan has two special features. One is that it proposes State Socialism in
important fields of economic life. The second special feature of the plan is that
it does not leave the establishment of State Socialism to the will of the Legislature.
It establishes State Socialism by the law of the constitution and thus makes it
unalterable by any act of the Legislature and the Executive.
Students of constitutional law will at once raise a protest. They are sure to
ask : Does not the proposal go beyond the scope of the usual type of funda¬
mental rights ? My answer is that it does not If it appears to go beyond it
is only because the conception of fundamental rights on which such criticism is
based is a narrow conception. One may go further and say that even from the
narrow conception of the scope of the constitutional law as comprising no more
than fundamental rights the proposal can find ample justification. For what is
the purpose of prescribing by law the shape and form of the economic structure
of society ? The purpose is to protect the liberty of the individual from invasion
by other individuals which is the object of enacting fundamental rights. The
connection between individual liberty and the shape and form of the economic
structure of society may not be apparent to every one. Nonetheless the connection
between the two is real. It will be apparent if the following considerations are
borne in mind.
Political democracy rests on four premises which may be set out in the fol¬
lowing terms :
(i) The individual is an end in himself;
(ii) That the individual has certain inalienable rights which must be guaranteed
to him by the Constitution;
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(iii) That the individual shall not be required to relinquish any of his consti¬
tutional rights as a condition precedent to the receipt of a privilege;
(iv) That the State shall not delegate powers to private persons to govern
others.
Anyone who studies the working of the system of social economy based on
private enterprise and pursuit of personal gain will realize how it undermines, if
it does not actually violate, the last two premises on which democracy rests. How
many have to relinquish their constitutional rights in order to gain their living?
How many have to subject themselves to be governed by private employers ?
Ask those who are unemployed whether what are called fundamental rights
are of any value to them. If a person who is unemployed is offered a choice
between a job of some sort, with some sort of wages, with no fixed hours of
labour and with an interdict on joining a union and the exercise of his right to
freedom of speech, association, religion, etc., can there be any doubt as to what
his choice will be? How can it be otherwise? The fear of starvation, the fear
of losing a house, the fear of losing savings, if any, the fear of being compelled
to take children away from school, the fear of having to be a burden on public
charity, the fear of having to be burned or buried at public cost are factors too
strong to permit a man to stand out for his fundamental rights. The unemployed
are thus compelled to relinquish their fundamental rights for the sake of securing
the privilege to work and to subsist
What about those who are employed ? Constitutional lawyers assume that the
enactment of fundamental rights is enough to safeguard their liberty and that
nothing more is called for. They argue that where the State refrains from inter¬
vention in private affairs—economic and social—the residue is liberty. What is
necessary is to make the residue as large as possible and State intervention as
small as possible. It is true that where the State refrains from intervention what
remains is liberty. But this does not dispose of the matter. One more question
remains to be answered. To whom and for whom is this liberty ? Obviously this
liberty is liberty to the landlords to increase rents, for capitalists to increase hours
of work and reduce rate of wages. This must be so. It cannot be otherwise.
For in an economic system employing armies of workers, producing goods en
masse at regular intervals some one must make rules so that workers will work
and the wheels of industry run on. If the State does not do it the private employer
will. Life otherwise will become impossible. In other words what is called liberty
from the control of the State is another name for the dictatorship of the private
employer.
How to prevent such a thing happening ? How to protect the unemployed
as well as the employed from being cheated out of their fundamental rights to
life, liberty and pursuit of happiness ? The useful remedy adopted by democratic
countries is to limit the power of Government to impose arbitrary restraints in
political domain and to invoke the ordinary power of the legislature to restrain
the more powerful individual from imposing arbitrary restraints on the less power¬
ful in the economic field. The inadequacy nay the futility of the plan has been
well-established. The successful invocation by the less powerful of the authority of
the legislature is a doubtful proposition. Having regard to the fact that even under
adult suffrage all legislatures and Governments are controlled by the more power-
full an appeal to the legislature to intervene is a very precarious safeguard against
the invasion of the liberty of the less powerful. The plan follows quite a differ¬
ent method. It seeks to limit not only the power of Government to impose
arbitrary restraints but also of the more powerful individuals or to be more
precise to eliminate the possibility of the more powerful having the power to
impose arbitrary restraints on the less powerful by withdrawing from the control
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he has over the economic life of the people. There cannot be the slightest doubt
that of the two remedies against the invasion by the more powerful of the rights
and liberties of the less powerful the one contained in the proposal is undoubtedly
the more effective. Considered in the light of these observations the proposal is
essentially a proposal for safeguarding the liberty of the individual. No consti¬
tutional lawyer can therefore object to it on the ground that it goes beyond the
usual scope of constitutional law.
So far the plan has been considered purely as a means of safeguarding
individual liberty. But there is also another aspect of the plan which is worthy
of note. It is an attempt to establish State Socialism without abrogating Parlia¬
mentary democracy and without leaving its establishment to the will of a Parlia¬
mentary democracy. Critics of State Socialism, even its friends, are bound to ask :
why make it a part of the constitutional law of the land ? Why not leave it to
the Legislature to bring it into being by the ordinary process of law ? The reason
why it cannot be left to the ordinary law is not difficult to understand. One
essential condition for the success of a planned economy is that it must not be
liable to suspension or abandonment It must be permanent The question is
how this permanence can be secured. Obviously it cannot be secured under the
form of government called Parliamentary democracy. Under the system of
Parliamentary democracy the policy of the Legislature and of the Executive is
the policy of the majority for the time being. Under the system of Parliamentary
democracy the majority in one election may be in favour of State Socialism in
industry and in agriculture. At the next election the majority may be against it
The anti-State Socialism majority will use its law-making power to undo the
work of the pro-State Socialism majority and the pro-State Socialism majority will
use its law-making power to do over again what has been undone by their opponents.
Those who want the economic structure of society to be modelled on State Socialism
must realize that they cannot leave the fulfilment of so fundamental a purpose
to the exigencies of ordinary law which simple majorities—whose political fortunes
are never determined by rational causes—have a right to make and unmake. For
these reasons political democracy seems to be unsuited for the purpose.
What is the alternative ? The alternative is dictatorship. There is no doubt
that dictatorship can give the permanence which State Socialism requires as an
essential condition for its fructification. There is however one fact against dicta¬
torship which must be faced. Those who believe in individual freedom strongly
object to dictatorship and insist upon Parliamentary democracy as a proper form
of government for a free society. For they feel that freedom of the individual
is possible only under Parliamentary democracy and not under dictatorship.
Consequently those who want freedom are not prepared to give up Parliamentary
democracy as a form of government However much they may be anxious to
have State Socialism they will not be ready to exchange Parliamentary democracy
for dictatorship even though the gain by such an exchange i3 the achievement of
State Socialism. The problem therefore is to have State Socialism without dicta¬
torship, to have State Socialism with Parliamentary democracy. The way out
seems to be to retain Parliamentary democracy and to prescribe State Socialism
by the law of the constitution so that it will be beyond the reach of a Parliamen¬
tary majority to suspend, amend or abrogate it. It is only by this that one can
achieve the triple object, namely, to establish socialism, retain Parliamentary democ¬
racy and avoid dictatorship.
The proposal marks a departure from the existing constitutions whose aim is
merely to prescribe the form of the political structure of society leaving the econo¬
mic structure untouched. The result is that the political structure is completely
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tel at naught by the forces which emerge from the economic structure which is
at variance with the political structure. Those who want socialism with Parlia¬
mentary democracy and without dictatorship should welcome the proposal.
The soul of democracy is the doctrine of one man, one value. Unfortunately,
democracy has attempted to give effect to this doctrine only so far as the poli¬
tical structure is concerned by adopting the rule of one man one vote which is
supposed to translate into fact the doctrine of one man one value. It has left
the economic structure to take the shape given to it by those who are in a posi¬
tion to mould it This has happened because constitutional lawyers have been
dominated by the antiquated conception that all that is necessary for a perfect
constitution for democracy was to frame a constitutional law which would make
Government responsible to the people and to prevent tyranny of the people by
the Government. Consequently almost all laws of constitution which relate to
countries which are called democratic stop with adult suffrage and fundamental
rights. They have never advanced to the conception that the constitutional law
of democracy must go beyond adult suffrage and fundamental rights. In other
words, old time constitutional lawyers believed that the scope and function of
constitutional law was to prescribe the shape and form of the political structure
of society. They never realized that it was equally essential to prescribe the shape
and form of the economic structure of society, if democracy is to live up to its
principle of one man, one value. Time has come to take a bold step and define
both the economic structure as well as the political structure of society by the
law of the constitution. All countries like India which are late-comers in the
field of constitution-making should not copy the faults of other countries. They
should profit by the experience of their predecessors.
Article ll—Section Ul
Clause 1
In the Government of India Acts of 1919 and 1935 the model that was adopted
for framing the structure of the executive in the Provinces and in the Centre
was of the British type or what is called by constitutional lawyers Parliamentary
executive as opposed to the American type of executive which in contradistinc¬
tion to the British type is called Non-Parliamentary Executive. The question is
whether the pattern for the executive adopted in the two Acts should be retained
or whether it should be abandoned and if so what model should be adopted in
tts place. Before giving final opinion on this issue it would be desirable to set
out the special features of the British type of executive and the consequences that
are likely to follow if it was applied to India.
The following may be taken to be the special features of the British or the
Parliamentary Executive: ... .
(1) It gives a party which has secured a majority in the Legislature the ngnt
to form a Government
(2) It gives the majority party the right to exclude from Government persons
who do not belong to the Party.
(3) The Government so formed continues in office only so long as it can
command a majority in the Legislature. If it ceases to command a major¬
ity it is bound to resign either in favour of another Government formed
out of the existing Legislature or in favour of a new Government formed
out of a newly elected Legislature.
As to the consequences that would follow if the British system was applied to
India the situation can be summed up in the following propositions :
(1) The British system of government by a cabinet of the majority party
rests on the premise that the majority is a political majority. In India
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103
the majority is a communal majority. No matter what social and political
programme it may have the majority will retain its character of being a
communal majority. Nothing can alter this fact Given this fact it is
dear that if the British system was copied it would result in permanently
vesting executive power in a communal majority.
(2) The British system of government imposes no obligation upon the majority
party to include in its cabinet the representatives of the minority party.
If applied to India the consequence will be obvious. It would make the
majority community a governing class and the minority community a sub¬
ject race. It would mean that a communal majority will be free to run
the administration according to its own ideas of what is good for the
minorities. Such a state of affairs could not be called democracy. It
will have to be called imperialism.
In the light of these consequences it is obvious that the introduction of the
British type of executive will be full of menace to the life, liberty and pursuit
of happiness of the minorities in general and of the Untouchables in particular.
The problem of the Untouchables is a formidable one for the Untouchables
to face. The Untouchables are surrounded by a vast mass of Hindu population
which is hostile to them and which is not ashamed of committing any inequity
or atrocity against them. For a redress of these wrongs which are matters of
daily occurrence, the Untouchables have to call in the aid of the administration.
What is the character and composition of this administration ? To be brief, the
administration in India is completely in the hands of the Hindus. It is their mono¬
poly. From top to bottom it is controlled by them. There is no department which
is not dominated by them. They dominate the police, the magistracy and the
revenue services, indeed any and every branch of the administration. The next
point to remember is that the Hindus in the administration have the same positive
anti-social and inimical attitude to the Untouchables which the Hindus outside
the administration have. Their one aim is to discriminate against the Untouchables
and to deny and deprive them not only of the benefits of law, but also of the
protection of the law against tyranny and oppression. The result is that the Un¬
touchables are placed between the Hindu population and the Hindu-ridden adminis¬
tration, the one committing wrongs against them and the other protecting the wrong¬
doer, instead of helping the victims.
Against this background, what can Swaraj mean to the Untouchables ? It
can only mean one thing, namely, that while today it is only the administration
that is in the hands of the Hindus, under Swaraj the Legislature and Executive
will also be in the hands of the Hindus. It goes without saying that such a
Swaraj would aggravate the sufferings of the Untouchables. For, in addition to
a hostile administration, there will be an indifferent Legislature and a callous
Executive. The result will be that the administration unbridled in venom and in
harshness, uncontrolled by the Legislature and the Executive, may pursue its
policy of inequity towards the Untouchables without any curb. To put it differ¬
ently, under Swaraj the Untouchables will have no way of escape from the destiny
of degradation which Hindus and Hinduism have fixed for them.
These are special considerations against the introduction of the British system
of executive which have their origin in the interests of the minorities and the
Scheduled Castes. But there is one general consideration which can be urged
against the introduction of the British Cabinet system in India. The British
Cabinet system has undoubtedly given the British people a very stable system of
government. Question is: will it produce a stable Government in India ? The
rhanfM are very slender. In view of the clashes of castes and creeds there is
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bound to be a plethora of parties and groups in the Legislature in India. If
this happens it is possible, nay certain, that under the system of Parliamentary
executive like the one that prevails in England under which the Executive is
bound to resign upon an adverse vote in the Legislature, India may suffer from
instability of the Executive. For it is the easiest thing for groups to align and
realign themselves at frequent intervals and for petty purposes and bring about
the downfall of Government The present solidarity of what are called the major
parties cannot be expected to continue. Indeed as soon as the problem of the
British in India is solved the cement that holds these parties together will fall
away. Constant overthrow of Government is nothing short of anarchy. The
present Constitution has in it section 93 which provides a remedy against it But
section 93 would be out of place in the Constitution of a free India. Some sub¬
stitute must therefore be found for section 93.
Taking all these considerations together there is no doubt that the British type
of executive is entirely unsuited to India.
The form of the executive proposed in the clause is intended to serve the
following purposes:
(i) To prevent the majority from forming a Government without giving any
opportunity to the minorities to have a sav in the matter.
(ii) To prevent the majority from having exclusive control over administra¬
tion and thereby make the tyranny of the minority by the majority
possible.
(iii) To prevent the inclusion by the majority party in the executive repre¬
sentatives of the minorities who have no confidence of the minorities.
(iv) To provide a stable executive necessary for good and efficient administra¬
tion.
The clause takes the American form of executive as a model and adapts it
to Indian conditions especially to the requirements of minorities. The form of
the executive suggested in the proposal cannot be objected to on the ground that
it is against the principle of responsible government Indians who are used to
the English form of executive forget that this is not the only form of democratic
and responsible Government The American form of executive is an equally
good type of democratic and responsible form of Government. There is also
nothing objectionable in the proposal that a person should not be qualified to
become a Minister merely because he is elected to the Legislature. The principle
that a member of the Legislature before he is made a Minister should be chosen
by his constituents was fully recognized by the British Constitution for over
hundred years. A member of Parliament who was appointed a Minister had to
submit himself for election before taking up his appointment. It was only lately
given up. There ought therefore to be no objection to it on the ground that the
proposals are not compatible with responsible Governments. The actual proposal
is an improved edition of the American form of government, for the reason that
under it members of the Executive can sit in the Legislature and have a right to
speak and answer questions.
Clause 2
The proposal cannot be controversial. The best remedy against tyranny and
oppression by a majority against the minority is inquiry, publicity and discussion.
This is what the safeguard provides for. A similar proposal was also recom¬
mended by the Sapru Committee.
Clause 3
Social boycott is always held over the heads of the Untouchables by the
caste Hindus as a sword of Damocles. Only the Untouchables know wliat a
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105
terrible weapon it is in the hands of the Hindus. Its effects and forms are well
described in the report made by a committee appointed by the Government of
Bombay in 1928 to investigate the grievances of the Depressed Classes and from
which the following extracts are made. It illuminates the situation in a manner so
simple that everybody can understand what tyranny the Hindus are able to practise
upon the Untouchables. The committee said :
Although we have recommended various remedies to secure to the
Depressed Classes their rights to all public utilities we fear that there will be
difficulties in the way of their exercising them for a long time to come. The
first difficulty is the fear of open violence against them by the orthodox
classes. It must be noted that the Depressed Classes form a small minority
in every village, opposed to which is a great majority of the orthodox who
are bent on protecting their interests and dignity from any supposed invasion
by the Depressed Classes at any cost The danger of prosecution by the police
has put a limitation upon the use of violence by the orthodox classes and
consequently such cases are rare.
The second difficulty arises from the economic position in which the
Depressed Classes are found today. The Depressed Classes have no econo¬
mic independence in most parts of the Presidency. Some cultivate the lands
of the orthodox classes as their tenants at will. Others live on their earnings
as farm labourers employed by the orthodox classes and the rest subsist on
the food or grain given to them by the orthodox classes in lieu of service
rendered to them as village servants. We have heard of numerous instances
where the orthodox classes have used their economic power as a weapon
against those Depressed Classes in their villages, when the latter have dared
to exercise their rights, and have evicted them from their land, and stopped
their employment and discontinued their remuneration as village servants. This
boycott is often planned on such an extensive scale as to include the preven¬
tion of the Depressed Classes from using the commonly used paths and the
stoppage of sale of the necessaries of life by the village bania. According
to die evidence, sometimes small causes suffice for the proclamation of a
social boycott against the Depressed Classes. Frequently it follows on the
exercise by the Depressed Classes of their right to use the common well, but
cases have been by no means rare where a stringent boycott has been pro¬
claimed simply because a Depressed Class man has put on the sacred thread,
has bought a piece of land, has put on good clothes or ornaments, or has carried
a marriage procession with a bridegroom on the horse through the public
street
This was said in 1928. Lest it should be regarded as a phase which has now
ended I reproduce below a copy of a petition by the Untouchables of the village
Kheri Jessore in the Punjab addressed to the Deputy Commissioner of the Rohtak
District in February 1947 a copy of which was sent to me. It reads as follows :
From
The Scheduled Caste People (Chamars),
Village Kheri Jessore, Tehsil and District Rohtak.
To
The Deputy Commissioner,
Rohtak District, Rohtak.
Sir,
We, the following Scheduled Caste (Chamars) of the Village Kheri Jessore,
beg to invite your kind attention to the hard plight, we are put to, due to the
undue pressure and merciless treatment by the caste Hindu Jats of this village.
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It was about four months back that the Jats of the village assembled in the
Chopal and told us to work in the fields on a wage in kind of one bundle of
.crops, containing only about one seer of grains per day per man instead of food
at both times and a load of crops, and annas 8 in addition which we used to get
before above announcement was made. As it was too little and insufficient to
meet both ends, we refused to go to work. At this they were enraged and
declared a social boycott on us. They made a rule that our cattle would not be
allowed to graze in the jungle unless we would agree to pay a tax not leviable
under Government for the animals, which they call as Poochhi. They even do
not allow our cattle to drink water in the village pool and have prevented the
sweepers from cleaning the streets where we live so that heaps of dust and dirt
are lying there which may cause some disease if left unattended to. We are forced
to lead a shameful life and they are always ready to beat us and to tear down
our honour by behaving indecently towards our wives, sisters and daughters. We
are experiencing a lot of trouble of the worst type. While going to the school,
the children were even beaten severely and in a merciless manner.
We submitted an application detailing the above facts to yourself, but we are
sorry that no action has been taken as yet
It is also for your kind consideration that the Inspector of Police and Tahsildar
of Rohtak, whom we approached in this connection, made a careless investigation
and in our opinion, no attention was paid to redress the difficulties of the poor and
innocent persons.
We, therefore, request your good self to consider over the matter and make some
arrangement to stop the merciless treatment and threats which the Jats give us in
different ways. We have no other approach except to knock at your kind door and
hope your honour will take immediate steps to enable us to lead an honourable and
peaceful life which is humanity's birth-right
We beg to remain.
Sir,
Your most obedient servants.
Scheduled Caste People (Chamars),
of Village Kheri Jessore,
Tehsil and District Rohtak.
Thumb Impressions
XXX
Copy forwarded to the Hon’ble Dr. B. R. Ambedkar,
Western Court New Delhi.
Received on 1st February, 1947.
This shows that what was true in 1928 is true even today. What is true of
Bombay is true of the whole of India. For evidence of the general use of boycott by
the Hindus against the Untouchables one has only to refer to the events that occurred
all over India in the last elections to the Provincial Legislatures. Only when boycott
is made criminal will the Untouchables be free from being the slaves of the Hindus.
The weapon of boycott is now-a-days used against other communities besides the
Scheduled Castes. It is therefore in the interests of all minor communities to have
this protection.
The provisions relating to boycott are taken bodily from the Burma
Anti-Boycott Act, 1922.
Clause 4
Such a provision already exists in section 150 of the Government of India Act. 1935.
Article II—Section IV
Part I—Clause I
There is nothing new in this clause. The right to representation in the Legislature
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107
is conceded by the Poona Pact The only points that require to be reconsidered relate
to (1) Quantum of Representation; (2) Weightage and (3) The System of Electorates.
(1) Quantum
The quantum of representation allowed to the Scheduled Castes by the Poona
Pact is set out in clause I of the Pact The proportion set out in the Pact was
fixed out of the balance of seats which remained after (i) the share of the other
communities had been taken out; (ii) after weightage to other communities had been
allotted, and (iii) after seats had been allocated to special interests. This allotment
of seats to the Scheduled Castes has resulted in great injustice. The loss due to
seats taken out as weightage and seats given to special interests ought not to have
been thrown upon the Scheduled Castes. The allotment of those seats had already
been made by the Communal Award long before the Poona Pact. It was therefore
not possible then to rectify this injustice.
(2) Weightage
There is another injustice from which the Scheduled Castes have been suffering.
It relates to their right to a share in weightage.
As one can see the right to weightage has become a matter of double controversy.
One controversy is between the majority and the minorities, the other is a matter of
controversy between the different minorities.
The first controversy relates to the principle of weightage. The majority insists
that the minority has no right to representation in excess of the ratio of its popu¬
lation to the total population. Why this rule is insisted upon by the majority it is
difficult to understand. Is it because the majority wants to establish its own claim
to population ratio so that it may always remain as a majority and act as a majority?
Or is it because of the fact that a minority no matter how much weightage was given
to it must remain a minority and cannot alter the fact that the majority will always
be able to impose its will upon it? The first ground leads to a complete negation of
the basic conception of majority rule which if rightly understood means nothing more
than a decision of the majority to which the minority has reconciled itself. This
cannot be the intention of the majority. One must put a more charitable construc¬
tion and assume that the argument on which the contention of the majority rests is
the second and not the first That a minority even with weightage will remain a
minority has to be accepted in view of the insistence of a communal majority to
remain a majority and to claim the privileges of a political majority which it is not
But surely there is a difference between a defeat which is a complete rout and a
defeat which is almost victory though not a victory. Cricketeers know what difference
there is between the defeat of a team by a few runs, a defeat by a few wickets and
a defeat by one whole innings. The defeat by one whole innings is a complete
frustration which a defeat by a few runs is not Such a frustration when it comes
about in the political life of a minority depresses and demoralizes and crushes the
spirit of the minority. This must be avoided at any price. Looked at from this
point of view there is no doubt that the rule of population—ratio-representation
insisted upon by the majority is wrong. What a minority needs is not more repre¬
sentation but effective representation.
And what is effective representation? Obviously the effectiveness of representa¬
tion depends upon its being large enough to give the minority the sense of not being
entirely overwhelmed by the majority. Representation according to population to
a minority or to the minorities combined may be effective by reason of the fact
that the population of a minority where there is only one or of the combined minor¬
ities where there are many is large enough to secure effective minority representation.
But there may be cases where the population of a minority or of the
minorities combined is too small to secure such effective representation if the
population ratio of a minority is taken as an inflexible standard to determine its
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FRAMING OF INDIA’S CONSTITUnON
quantum of representation. To insist upon such a standard is to make mockery
of the protection to the minority which is the purpose behind the right to representa¬
tion which is accepted as the legitimate claim of a minority. In such cases
weightage which is another name for deduction from the quantum of representa¬
tion which is due to the majority on the basis of its population becomes essential
and the majority if it wishes to be fair and honest must concede it. There can
therefore be no quarrel over the principle of weightage. On this footing the con¬
troversy becomes restricted to the question, how is the magnitude of weightage to
be determined ? This obviously is a question of adjustment and not of principle.
There can therefore be no manner of objection to the principle of weightage.
The demand for weightage is however a general demand of all the minorities and
the Scheduled Castes must join them in it where the majority is too big. What is
however wrong with the existing weightage is unequal distribution among the various
minorities. At present, some minorities have secured a lion's share and some like
the Untouchables have none. This wrong must be rectified oy a distribution of the
weightage on some intelligible principle.
(3) Electorates
1. The method of election to the seats allotted to the Scheduled Castes is set
out in clauses (2) to (4) of the Poona Pact It provides for two elections : (1)
primary election and (2) final election. The primary election is by a separate
electorate, of the Scheduled Castes. It is only a qualifying election and determines
who is entitled to stand in the final election on behalf of the Scheduled Castes for
the seats reserved to them. The final election is by a joint electorate in which
both caste Hindus and the Scheduled Castes can vote and the final result is
determined by their joint vote.
2. Clause (5) of the Poona Pact has limited the system of primary election to
ten years which means that any election taking place after 1947 will be by a
system of joint electorates and reserved seats pure and simple.
3. Even if the Hindus agreed to extend the system of double election for a
further period it will not satisfy the Scheduled Castes. There are two objections
to the retention of the primary election. Firstly, it does not help the Scheduled
Castes to elect a man who is their best choice. As will be seen from Appendix
III,* the Scheduled Caste candidate who tops the poll in the primary election fails
to succeed in the final election and the Scheduled Caste candidate who fails in
the primary election tops the poll in the final election. Secondly, the primary
election is for the most part a fiction and not a fact In the last election, out of
151 seats reserved for the Scheduled Castes there were primary elections only in
43. This is because it is impossible for the Scheduled Castes to bear the expenses
of two elections—primary and final. To retain such a system is worse than use¬
less.
4. Things will be much worse under the system of joint electorates and re¬
served seats which will hereafter become operative under the terras of the Poona
Pact This is no mere speculation. The last election has conclusively proved that
the Scheduled Castes can be completely disfranchised in a joint electorate. As
will be seen from the figures given in Appendix III*, the Scheduled Caste candi¬
dates have not only been elected by Hindu votes when the intention was that they
should be elected by Scheduled Caste votes but what is more the Hindus have
elected those Scheduled Caste candidates who had failed in the primary election.
This is a complete disfranchisement of the Scheduled Castes. The main reason is
to be found in the enormous disparity between the voting strength of the Scheduled
♦Not reproduced.
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SUB-COMMITTEE ON FUNDAMENTAL RIGHTS
109
Castes and the caste Hindus in most of the constituencies as may be seen from
figures given in Appendix III*. As the Simon Commission has observed, the device
of the reserved seats ceases to be workable where the protected community consti¬
tutes an exceedingly small fraction of any manageable constituency. This is
exactly the case of the Scheduled Castes. This disparity cannot be ignored. It
will remain even under adult suffrage. That being the case, a fool-proof and
a knave-proof method must be found to ensure real representation to the Sche¬
duled Castes. Such a method must involve the abolition of :
(i) the primary election as a needless and heavy encumbrance; and
(ii) the substitution of separate electorates.
5. One of the issues which has embittered the relations between the Hindus
and the Scheduled Castes in the political field is the issue of electorates. The
Scheduled Castes are insisting upon separate electorates. The Hindus are equally
insistent on opposing the demand. To arrive at a settlement on this issue—with
out which there can be no peace and amity between the Hindus and the Sche¬
duled Castes—it is necessary to determine who is right and who is wrong and
whether the opposition is based on rational grounds or is based on mere prejudice.
6. The grounds which are generally urged against the demand of the Scheduled
Castes for separate electorates are :
(i) that the Scheduled Castes are not a minority ;
(ii) that the Scheduled Castes are Hindus and therefore they cannot have
separate electorates;
(iii) that separate electorates will perpetuate untouchability;
(iv) that separate electorates are anti-national; and
(v) that separate electorates enable British imperialism to influence the com¬
munities having separate electorates to act against the interests of the
country.
7. Are these arguments valid ?
(i) To say that the Scheduled Castes are not a minority is to misunderstand
the meaning of the word ‘minority*. Separation in religion is not the
only test of a minority. Nor is it a good and efficient test Social dis¬
crimination constitutes the real test for determining whether a social group
is or is not a minority. Even Mr. Gandhi thought it logical and practical
to adopt this test in preference to that of religious separation. Following
this test, Mr. Gandhi in an editorial under the heading ‘The Fiction of
Majority** in the Harijan dated 21st October 1939 has given his opinion
that the Scheduled Castes are the only real minority in India.
(ii) To argue that the Scheduled Castes are Hindus and therefore cannot
demand separate electorates is to put the same argument in a different
form. To make religious affiliation the determining factor for constitu¬
tional safeguards is to overlook the fact that the religious affiliation may
be accompanied by an intense degree of social separation and discrimina¬
tion. The belief that separate electorates go with separation in religion
arises from the fact that those minorities who have been given separate
electorates happen to be religious minorities. This, however, is not cor¬
rect Muslims are given separate electorates not because they are diff¬
erent from Hindus in point of religion. They are given separate electorates
because—and this is the fundamental fact—the social relations between the
Hindus and the Musalraans are marked by social discrimination. To put
the point in a somewhat different manner, the nature of the electorates is
♦Not reproduced.
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FRAMING OF INDIA’S CON S T I T U T IO N
determined not by reference to religion but by reference to social considera¬
tions. That it is social considerations and not religions affiliation or dis¬
affiliation which is accepted as the basis of determining the nature of the
electorates is best illustrated by the arrangements made under the Government
of India Act 1935 for the Christian community in India. The Christian
community is divided into three sections—Europeans, Anglo-Indians and
Indian Christians. In spite of the fact that they all belong to the same
religion each section has a separate electorate. This shows that what is
decisive is not religious affiliation but social separation.
(iii) To urge that separate electorates prevent solidarity between the Untouch¬
ables and the caste Hindus is the result of confused thinking. Elections
take place once in five years. Assuming there were joint electorates, it
is difficult to understand how social solidarity between the Hindus and
the Untouchables can be promoted by their devoting one day for voting
together when out of the rest of the five years they are leading severely
separate lives ? Similarly, assuming that there were separate electorates
it is difficult to understand how one day devoted to separate voting in the
course of five years can make for greater separation than what already
exists ? Or contrarywise, how can one day in five years devoted to sepa¬
rate voting prevent those who wish to work for their union from carrving
out their purposes? To make it concrete, how can separate electorate for
the Untouchables prevent intermarriage or interdining being introduced
between them and the Hindus? It is therefore futile to say that separate
electorates for the Untouchables will perpetuate separation between them
and the Hindus.
(iv) To insist that separate electorates create anti-national spirit is contrary
to experience. The Sikhs have separate electorates. But no one can
say that the Sikhs are anti-national. The Muslims have had separate
electorates right from 1909. Mr. Jinnah had been elected by separate
electorates. Yet, Mr. Jinnah was the apostle of Indian nationalism up
to 1935. The Indian Christians have separate electorates. Nonetheless
a good lot of them have shown their partiality to the Congress if they
have not been actually returned on the Congress ticket Obviously,
nationalism and anti-nationalism have nothing to do with the electoral
system. They are the result of extra-electoral forces.
(v) This argument has no force. It is nothing but escapism. Be that as it
may, with free India any objection to separate electorates on such a
ground must vanish.
8. The reason why the arguments advanced by the opponents of separate
electorates do not stand the scrutiny of logic and experience is due entirely to the
fact that their approach to the subject is fundamentally wrong. It is wrong in two
respects :
(i) They fail to realize that the system of electorates has nothing to do with
the religious nexus or communal nexus. It is nothing but a mechanism
to enable a minority to return its true representative to the Legislature.
Being a mechanism for the protection of a minority it follows that whether
the electorate should be joint or separate must be left to be determined by
the minority.
(if) They fail to make any distinction between the demand for separate elec¬
torates by a majority community and a similar demand made by a minor¬
ity community. A majority community has no right to demand separate
electorates. The reason is simple. A right by a majority community to
demand separate electorates is tantamount to a right to establish the
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111
Government of the majority community over the minority community
without the consent of the minority. This is contrary to the well-established
doctrine of democracy that government must be with the consent of the
governed. No such evil consequence follows from the opposite principle,
namely, that a minority community is entitled to determine the nature of
the electorates suited to its interests, because there is no possibility of
the minority being placed in a position to govern the majority.
9. A correct attitude towards the whole question rests on the following
axioms :
(i) The system of electorates being a device for the protection of the minority,
the issue whether the electoral system should be the joint electorate or
separate electorate must be left to the wishes of the minority. If it is
large enough to influence the majority it will choose joint electorates. If it is
too small for the purpose, it will prefer separate electorates for fear of
being submerged.
(ii) The majority, being in a position to rule, can have no voice in the
determination of the system of electorates. If the minority wants joint
electorates, the majority must submit itself to joint electorates. If the
minority decides to have separate electorates for itself the majority cannot
refuse to grant them. In other words, the majority must look to the
decision of the minority and abide by it
Part I—Clause 2
This demand may appear to be outside the Poona Pact inasmuch as the
Poona Pact made no provision for it This would not be correct As a matter
of fact, if no provision was made, it was because there was no need to make such
a provision. This was due to two reasons. Firstly , it was due to the fact that at
the time when the Poona Pact was made no community was guaranteed by law a
specific quantum of representation in the Executive. Secondly , the representation of
the communities in the Executive was left to a convention which the Governor
by his instrument of Instructions was required to see observed. Experience has
shown that the quantum of representation of the Scheduled Castes in the Executive
should now be fixed.
Part I—Clause 3
This is not a new demand. Clause 8 of the Poona Pact guarantees to the Sche¬
duled Castes fair representation in public services. It does not, however, define the
quantum of representation. The demand has been admitted by the Government
of India as legitimate and even the quantum of representation has been defined. All
that remains is to give it a statutory basis.
Part II—Clause 1
This is not a new demand. Clause 9 of Poona Pact guarantees that an adequate
sum shall be earmarked for the education of the Scheduled Castes. It does
not define the quantum. All that the demand does is to define the quantum
of liability the State should take. In this connection reference may be made to
section 83 of the Government of India Act, 1935, which relates to the education
of the Anglo-Indians and Europeans and to the grants made to the Aligarh and
Benares Hindu Universities by the Central Government
Part II—Clause 2
This is a new demand but is justified by circumstances. At present, the Hindus
live in the villages and the Untouchables live in the Ghettoes. The object is to
free the Untouchables from the thraldom of the Hindus. So long as the present
arrangement continues it is impossible for the Untouchables either to free them¬
selves from the yoke of the Hindus or to get rid of their untouchability. It is
the close-knit association of the Untouchables with the Hindus living in the same
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FRAMING OF INDIA'S CONSTIT U TI ON
villages which marks them out as Untouchables and which enables the Hindus
to identify them as being Untouchables. India is admittedly a land of villages
and so long as the village system provides an easy method of marking out and
identifying the Untouchables, the Untouchable has no escape from untouchability.
It is the system of the village plus the Ghetto which perpetuates untouchability
and the Untouchables therefore demand that the nexus should be broken and
the Untouchables who are as a matter of fact socially separate should be made
separate geographically and territorially also, and be settled into separate villages
exclusively of Untouchables in which the distinction of the high and the low and
of Touchable and Untouchable will find no place.
The second reason for demanding separate settlements arises out of the econo¬
mic position of the Untouchables in the villages. That their condition is most
pitiable no one will deny. They are a body of landless labourers who are entirely
dependent upon such employment as the Hindus may choose to give them and on
such wages as the Hindus may find it profitable to pay. In the villages in which
they live they cannot engage in any trade or occupation, for owing to untouchability
no Hindu will deal with them. It is therefore obvious that there is no way of
earning a living which is open to the Untouchables so long as they live in a Ghetto
as a dependent part of the Hindu village.
This economic dependence has also other consequences besides the condition
of poverty and degradation which proceeds from it The Hindu has a code of
life, which is part of his religion. This code of life gives him many privileges and
heaps upon the Untouchable many indignities which are incompatible with the
dignity and sanctity of human life. The Untouchables all over India are fighting
against the indignities and injustices which the Hindus in the name of their religion
have heaped upon them. A perpetual war is going on every day in every village
between the Hindus and the Untouchables. It does not see the light of the day.
The Hindu press is not prepared to give it publicity lest it should injure the
cause of their freedom in the eyes of the world. The existence of a grim struggle
between the Touchables and the Untouchables is however a fact Under the village
system the Untouchable has found himself greatly handicapped in his struggle for
free and honourable life. It is a contest between the Hindus who are economically
and socially strong and the Untouchables who are economically poor and numeri¬
cally small. That the Hindus most often succeed in suppressing the Untouchables
is due to many causes. The Hindus have the police and the magistracy on their
side. In a quarrel between the Untouchables and the Hindus the Untouchables
will never get protection from the police and justice from the Magistrate. The
police and the magistracy naturally love their class more than their duty. But
the chief weapon in the armoury of the Hindus is economic power which they
possess over the poor Untouchables living in the village. The proposal may be
dubbed escapism. But the only alternative is perpetual slavery.
Part HI—Clause 1
No country which has the problem of communal majority and communal
minority is without some kind of an arrangement whereby they agree to share
political power. South Africa has such an understanding. So has Canada. The
arrangement for sharing political power between the English and the French in
Canada is carried to the minutest office. In referring to this fact Mr. Porritt in
his book The Evolution of the Dominion of Canada says-:
Conditions at Ottawa, partly due to race and language, and partly to long-
prevailing ideas as to the distribution of all government patronage, have
militated against the Westminster precedent of continuing a member in the
chair for two or three parliaments, regardless of the fortunes of political
parties at general elections. There is a new speaker at Ottawa for each
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113
new House of Commons; and it has long been a custom that when one
political party continues in power for two or three parliaments, if the
speaker in one parliament is of British extraction the next one shall be a
French-Canadian.
It is a rule also that the offices of Speaker and of Deputy-Speaker can at
no time be held by men of the same race. If the Speaker is a French-
Canadian, the Deputy-Speaker, who is also chairman of committees, must be
an English-speaking Canadian : for the rule of the House is that the
member elected to serve as Deputy-Speaker shall be required to possess the
full and practical knowledge of the language which is not that of the
Speaker for the time being.
The Clerkship and the Assistant Clerkship of the House and the offices of
Sergeant-at-Arms and Deputy-Sergeant-at-Arms—all appointive as distinct
from elective offices—are by usage also similarly divided between the two
races.
Nearly all the offices, important and unimportant, connected with Parlia¬
ment, with the Senate as well as with the House, are distributed in accord¬
ance with these rules or usages. A roll call of the staffs of the two Houses,
including even the boys in knicker-bockers who act as pages, would contain
the names of almost as many French-Canadians as Canadians of British
ancestry.
The rules and usages by virtue of which this distribution of offices is
made are older than Confederation. They date back to the early years of
the United Provinces, when Quebec and Ontario elected exactly the same
number of members to the legislature, and when these were the only provinces
in the union.
Quebec today elects only 65 of the 234 members of the House of Com¬
mons. Its population is not one-fourth of the population of the Dominion.
Its contribution to Dominion revenues does not exceed one-sixth. But an
equal division of the offices of the House of Commons is regarded by Quebec
as necessary to the preservation of its rights and privileges; and so long
as each political party, when it is in power, is dependent on support from
French-Canada, it will be nearly as difficult to ignore the claim of Quebec
to these parliamentary honours and offices as it would be to repeal the clause
in the British North America Act that safeguards the separate schools
system.
Unfortunately for the minorities in India, Indian nationalism has developed a
new doctrine which may be called the Divine Right of the Majority to rule the
minorities according to the wishes of the majority. Any claim for the sharing of
power by the minority is called communalism while the monopolizing of the whole
power by the majority is called nationalism. Guided by such political philosophy
the majority is not prepared to allow the minorities to share political power nor is
it willing to respect any convention made in that behalf as is evident from their
repudiation of the obligation (to include representatives of the minorities in the
cabinet) contained in the Instrument of Instructions issued to the Governors
in the Government of India Act of 1935. Under these circumstances there is
no way left but to have the rights of the Scheduled Castes embodied in the
Constitution.
Part HI—Clause 2
This is not a new demand. It replaces clause 6 of the Poona Pact which
provides that the system of representation for the Scheduled Castes by reserved
seats shall continue until determined by mutual consent between the communities
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concerned in the settlement Since there is no safe method of ascertaining the
will of the Scheduled Castes as to how to amend and alter the safeguards provided
for them it is necessary to formulate a plan which will take the place of clause 6
of the Pact Provisions having similar objectives to those contained in the proposal
exist in the Constitutions of Australia, America and South Africa.
In dealing with a matter of this sort two considerations have to be borne in
mind. One is that it is not desirable to rule out the possibility of a change in
the safeguards being made in the future by the parties concerned. On the other
hand it is by no means desirable to incessantly struggle over their revision. If the
new Union and State Legislatures are to address themselves successfully to their
responsibilities set out in the preamble, it is desirable that they should not be
distracted by the acute contentions between religions and classes which questions of
change in the safeguards are bound to raise. Hence a period of twenty-five years
has been laid down before any change could be considered.
Article 11—Section 11, Part IV
The object of this provision is to see that whatever safeguards are provided for
the Scheduled Castes in British India are also provided for the Scheduled Castes in
the Indian States. The provision lays down that an Indian State seeking admis¬
sion to the Union shall have to satisfy that its constitution contains these safe¬
guards.
Article II—Interpretation
Whether the Scheduled Castes are a minority or not has become a matter of
controversy. The purpose of the first provision is to set this controversy at rest
The Scheduled Castes are in a worst position as compared to any other minority in
India. As such they require and deserve much more protection than any other
minority does. The least one can do is to treat them as a minority.
The purpose of the second provision is to remove the provincial bar. There is
no reason why a person who belongs to Scheduled Castes in one province should
lose the benefit of political privileges given by the Constitution merely because he
happens to change his domicile.
(HI) MINUTES OF THE MEETINGS OF THE SUB-COMMITTEE
February 27—March 31, 1947
February 27, 1947
Present: Rajkumari Amrit Kaur, Dr. B. R. Ambedkar, Sir Alladi
Krishnaswami Ayyar, Mr. M. R. Masani. Shri K. T. Shah, Sardar Harnam
Singh, Shri Jairamdas Daulatram, Mr. K. M. Munshi.
The Constitutional Adviser was also present.
In attendance: Mr. H. V. R. Iengar (Secretary), Mr. Jugal Kishore
Khanna (Deputy Secretary).
Item 1 of the Agenda:
On being proposed by Mr. K. M. Munshi and seconded by Shri K. T. Shah.
Shri Jairamdas Daulatram was elected temporary chairman of the meet¬
ing.
Mr. K. M. Munshi proposed and Sardar Harnam Singh seconded the name
of Acharya J. B. Kripalani for the chairmanship of the committee. The
motion was adopted.
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Item 2:
Mr. K. M. Munshi suggested a preliminary discussion on the main task of
formulating suggestions for the rights of citizens. A short discussion ensued
in which Dr. B. R. Ambedkar, Sir Alladi Krishnaswami Ayyar, Sardar
Harnam Singh and the Chairman took part and it was agreed that before
a bill of rights was drawn up, the sub-committee should have a clear idea
about the points to be concentrated upon. The Chairman invited the
members to express their opinions.
Alluding to the charter of fundamental rights and guarantees embodied
in the Irish and American constitutions. Sir Alladi Krishnaswami Ayyar
pointed out that citizens’ rights to be embodied in a constitution should
consist of guarantees enforceable in courts of law, and that it was no use
laying down precepts which remained unenforceable or ineffective. The
Supreme Court of the United States, whenever its power is invoked under
the Fourteenth Amendment to the Constitution, prevents a State from
depriving any person of his life, liberty or property otherwise than by due
process of law. Sir Alladi advised the sub-committee to take the United
States as their model for the protection of the basic rights of the citizens.
Prof. K. T. Shah emphasized that along with rights, there should be a
corresponding list of obligations on the citizens.
Mr. K. M. Munshi said that the sub-committee had to consider :
1. Whether fundamental rights of the nature of mere precepts should
be embodied in the Constitution.
2. If not, what should be the justiciable rights. He was emphatically
erf the view that the Constitution should provide for writs to be issued
by the courts. He thought the committee should concentrate on the
justiciable rights first and that the precepts can come later on.
Rajkumari Amrit Kaur agreed with the views of Prof. K. T. Shah and
Mr. K. M. Munshi.
Mr. M. R. Masani was not in favour of including rights which cannot be
enforced by law. He suggested the setting up of an independent supreme
judicial authority for pronouncement of judgments on the validity of laws
which may infringe the fundamental rights. He also pleaded for the inser¬
tion in the Constitution of fundamental rights of groups (of citizens) in
addition to the rights of citizens.
Dr. B. R. Ambedkar agreed with Mr. Munshi. He informed the sub¬
committee that he had prepared a long list of fundamental rights which he
proposed to lay before the sub-committee. For the present he suggested
that prerogative writs should be provided for in the Constitution.
Sardar Harnam Singh stated that the decisions of the Federal Court of
India should be held binding in cases of justiciable rights and for non-justi-
ciable rights some other machinery should be evolved. He deprecated the
growing tendency of forcing the people of one Province to use the language
of another Province. For instance he stated that the Punjabis were being
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FRAMING OF INDIA’S CONSTITUTION
forced to give up Punjabi for Urdu. He advised that this should not be
allowed to happen.
Referring to the U.S.S.R. Constitution he stated that all sorts
of rights were included therein although they were not intended to be
justiciable.
There was a consensus of opinion that the sub-committee should adjourn
for some three weeks so that the members may have sufficient time and
opportunity to formulate their own proposals and to study the memoranda
prepared by other members and the office.
The Chairman directed the office to send copies of all such drafts and
other material which may be ready for the use of the members of the sub¬
committee.
The next meeting of the sub-committee was decided to be held on Monday,
the 24th March 1947 at 10 a.m.
March 24, 1947
Present: Acharya J. B. Kripalani. Sir Alladi Krishnaswami Ayyar, Sardar
Haraam Singh, Prof. K. T. Shah, Mr. K. M. Munshi, Rajkumari Amrit
Kaur, Mr. M. R. Masani, Mrs. Hansa Mehta (who has been nominated to
the sub-committee).
1. The minutes of the last meeting were passed.
2. It was decided to take up Mr. Munshi’s draft* and examine it in con¬
junction with other drafts.
3. Consideration of Article I of Mr. Munshi's draft was postponed.
4. As regards Article II of Mr. Munshi’s draft, it was decided to adopt
Article I, sub-sections (1) and (2) of Sir B. N. Rau’s draft in the following
modified form:
Article I (1). Every person born or naturalized in the Union of India
and subject to the jurisdiction thereof shall be a citizen of the Union.
Further provisions governing the accrual, acquisition and termination of
Union citizenship may be made by the law of the Union.
(2) Every citizen of the Union shall be free to move throughout the
Union, to reside and settle in any part thereof, to acquire property, and
to follow any occupation, trade, business or profession subject to such
reasonable restraints as the law may impose.
There was considerable discussion as to whether in sub-section (2), in the
expression “subject to such reasonable restraints as the law may impose”,
the words “the law” may remain as they are or should be replaced by the
words “law of the Union”. Three members, namely, Mr. Munshi, Sardar
Harnam Singh, and Rajkumari Amrit Kaur were in favour of using the
expression “law of the Union”, while the other five, namely, Acharya
Kripalani, Sir Alladi Krishnaswami Ayyar, Prof. K. T. Shah, Mrs. Hansa
*Vide Document No. 4(iiXb).
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SUB-COMMITTEE ON FUNDAMENTAL RIGHTS
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Mehta and Mr. Masani were in favour of retaining the words as drafted by
Sir B. N. Rau.
Discussion on Article 1(3) of Sir B. N. Rau’s draft* was postponed.
5. Article III of Mr. Munshi’s draft and Article II of Sir B. N. Rau’s
draft were then discussed and the following decisions were reached:
There should be a clause to the effect that all persons (not merely citizens)
shall be equal before the law. The clause need not contain any definition
of the expression “equal before the law” as the clause will doubtless be
interpreted by the courts in the light of precedents.
The question was debated at length whether, as suggested in Mr. Munshi’s
draft, there shall be a positive statement about rights and obligations
followed by a statement in a negative form to the effect that there shall be
no discrimination on grounds of religion, race, sex, etc. Sir Alladi was
opposed to this form of drafting on the ground that it would give rise to
serious difficulties. He thought that it would be enough to declare that there
shall be no discrimination on such and such grounds. The committee decided
by a majority of votes in favour of the proposal of Mr. Munshi that there
shall first be a statement in a positive form followed by a declaration in the
negative against certain forms of discrimination.
It was decided that a draft should be prepared in the light of the above
discussions on clause (1) of Article III prepared by Mr. Munshi. Clauses (2)
and (3) were omitted and it was decided in particular that no special provi¬
sion in regard to women as in clause (3) need be included.
Discussion on clause (4) was postponed.
There was a discussion on Prof. Shah’s suggestion that the right to employ¬
ment be included in clause (S). It was suggested in the course of discussion
that the insertion, after the words “public employment” in sub-clause (a),
of the expression “including employment in any enterprise aided or assisted
by the State” or words to that effect would meet the point. This suggestion
was not accepted. Prof. Shah reserved to himself the right to submit his
own note on the subject. Prof. Shah suggested that the clause should also
contain reference to equal opportunity in education. It was decided that
this should be discussed at a later stage.
Clause (6) having been considered separately was not pursued under Article
IH.
Clauses (7) to (9) were decided to be dropped and clause (10) was accepted.
6. Article IV of Mr. Munshi’s draft was then discussed and the following
decisions were reached:
Hindustani, written at the option of the citizen, either in the Devanagari
or the Persian script shall, as the national language, be the first official
language of the Union. English shall be the second official language for
such period as the Union may by law determine. It shall be competent
to the Union by law to declare that all official records of the Union shall
♦Not reproduced.
9
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FRAMING OF INDIA’S CONSTITUTION
be kept in Hindustani in both the scripts as and until the law otherwise
provides, also in English.
The above decisions were subject to further consideration of the point as
to whether a clause on the above lines may properly be included in a chapter
on fundamental rights.
APPENDIX
CLAUSES AS REVISED
Article /.—Deferred.
Article II. —(1) Every person bora or naturalized in the Union of India and
subject to the jurisdiction thereof shall be a citizen of the Union. Further provisions
governing the accrual, acquisition and termination of Union citizenship may be
made by the law of the Union.
Explanation .—In this clause, the law of the Union shall include any existing
Indian law as in force within the Union or any part thereof.
(2) Every citizen of the Union shall be free to move throughout the Union, to reside
and settle in any part thereof, to acquire property, and to follow any occupation, trade,
business or profession subject to such reasonable restraints as the law may impose.
Article III. —(1) All persons within the Union shall be equal before the law.
No person shall be denied the equal protection of the laws within the territories
of the Union. There shall be no discrimination against any person on grounds of
religion, race, caste, language, or sex.
(3)
(4) Deferred.
(5) There shall be equality of opportunity for all citizens : —
(a) in matters of public employment,
(b) in the exercise or carrying on of any occupation, trade, business or profession,
and no citizen shall, on grounds only of religion, place of birth, descent, race,
caste, language or sex be ineligible for public office or be prohibited from
acquiring, holding or disposing of property or exercising or carrying on any occupa¬
tion, trade, business or profession within the Union.
(6) Already covered.
Omitted.
Article IV. —Hindustani, written at the option of the citizen, either in the
Devanagari or the Persian script shall, as the national language, be the first official
language of the Union. English shall be the second official language for such
period as the Union may by law determine. It shall be competent to the Union
by law to declare that all official records of the Union shall be kept in Hindustani
in both the scripts and until the law otherwise provides, also in English.
March 25, 1947
Present: Acharya J. B. Kripalani, Sir Alladi Krishnaswami Ayyar, Sardar
Hamam Singh, Prof. K. T. Shah, Mr. K. M. Munshi, Rajkumari Amrit Kaur,
Mr. M. R. Masani, Mrs. Hansa Mehta, Dr. B. R. Ambedkar (in the
afternoon session only).
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The draft minutes of yesterday’s meeting were approved.
In connection with paragraph 6 of the minutes. Mr. Masani wanted it
to be recorded that it shall be open to a citizen, at his option, to use the
Roman script as an alternative to Devanagari or Persian script.
2. Sir B. N. Rau’s draft of the clauses dealt with at yesterday’s meeting
was approved in the form shown in the Appendix.
There was considerable discussion as to whether the expression “all per¬
sons within the Union shall be equal before the law’’ should be followed
by a full stop or be connected with the clause on discrimination by a semi¬
colon or by the word “and”. It was decided by a majority that the sentences
should be separate.
Prof. Shah raised the question as to whether equality of all citizens before
the law implied that there would be no discrimination either in favour of
or against any class or community. It was decided that this point was
outside the scope erf this sub-committee.
3. In connection with Article IV, there was discussion as to whether the
clause regarding the national language should be included in the chapter
on fundamental rights. The view was expressed that while undoubtedly
such a clause properly falls within the Union Constitution as an implied
power of the Union, it is a matter of considerable doubt as to whether it is
a fundamental right. The majority decided that, in view of the peculiar
conditions of this country, it should be included in the chapter on funda¬
mental rights.
4. Prof. Shah initiated a discussion on paragraphs 3-7 of his draft on the
subject of titles. It was decided by a majority that the following provisions
should be included :
(1) Titles, with the exception of academic degrees, shall not be awarded
except when they denote an office or a profession.
(2) No citizen shall, without the consent of the Union Legislature, accept
a title from a foreign State.
5. Article V of Mr. Munshi’s draft was then taken up. It was agreed
that sub-clause (5) should be dealt with separately.
The question whether the various rights included in sub-clause (1) shall
be expressed to apply to citizens or to all persons in the Union was considered
and the following decisions were taken :
(a) Right of free expression of opinion—to citizens. 5 members were
in favour of this and 3 were in favour of extending it to
all persons.
(b) The right of free association and combination—to citizens.
(c) The right to assemble peaceably and without arms—to citizens.
Prof. K. T. Shah was opposed to this decision and reserved the right
to submit a separate note.
(d) The right to personal liberty—to all persons.
(e) The right to be informed within twenty-four hours of his deprivation
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FRAMING OF INDIA’S CONSTITUTION
of liberty by what authority and the nature and cause of the accusa¬
tion on which he is being so deprived—to all persons.
(f) The right to the inviolability of his home—to all persons.
(g) The right to the secrecy of his correspondence—to citizens.
(h) The right to maintain his person secure by the law of the Union
from exploitation in any manner contrary to law or public morality—
to tall persons.
(i) The right of free movement and trade within the territories of the
Union—to be taken up separately.
It was decided that clauses (a), (b) and (c) of Article (1) should be re¬
drafted on the basis of section 40(6) of the Irish Constitution.
Clause (d) was decided to be dropped in view of sub-clause (4).
Clause (e) was decided to be dropped.
As regards clause (f), it was decided to copy the following provision in
the American Constitution:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
There was discussion as to whether only the first portion of this provision
ending with the word “violated” should be adopted or whether the whole
clause should be adopted. By a majority of 5 to 4, it was decided that the
whole clause should be adopted.
APPENDIX
CLAUSES AS REVISED
Under Article III of Mr. Munshi’s draft add new clause—
No titles except those denoting an office or a profession shall be conferred by the
Union.
No citizen of the Union and no person holding any office of profit or trust under
the Union or any unit thereof shall, without the consent of the Union, accept any
present, emolument, office or title of any kind from any foreign State.
Article F.—(1) There shall be liberty for the exercise of the following rights,
subject to public order and morality :—
(a) The right of the citizens to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or
defamatory matter shall be actionable or punishable in accordance with law.
(b) The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are likely
to cause a breach of the peace or are a danger or nuisance to the general public
or to prevent or control meetings in the vicinity of any chamber of a Legislature.
(c) The right of the citizens to form associations or unions.
Provision may be made by law to regulate and control in the public interest
the exercise of the foregoing right provided that no such provision shall contain
any political, religious or class discrimination.
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Omitted in view of clause (4).
(f) Substitute new clause (2).—The right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
March 26, 1947
Present: Acharya J. B. Kripalani, Sir Alladi Krishnaswami Ayyar, Sardar
Harnam Singh, Prof. K. T. Shah, Mr. K. M. Munshi, Rajkumari Amrit Kaur,
Mr. M. R. Masani, Mrs. Hansa Mehta. Dr. B. R. Ambedkar.
The draft minutes of yesterday’s meeting were approved.
Dr. Ambedkar said that as he was not present at the discussions on the
24th and on the morning of the 25th, he may have to write minutes of
dissent on certain points. It was agreed that such minutes may be considered
before the report of the sub-committee is finalised.
2. The draift clauses prepared by Sir B. N. Rau in the light of the dis¬
cussions yesterday were approved in the form shown in the Appendix.
The decision on the clause dealing with titles was considered afresh and
was confirmed by a majority vote. A point was raised as to whether the
first part of the clause prohibited only the Union from conferring titles or
the units as well. It was decided that this question may be held over for
subsequent discussion.
The rider to sub-clause (c) of Article V was passed by a majority vote.
Sir Alladi Krishnaswami Ayyar was of the opinion that the rider was un¬
necessary as the limitations on the right of citizens to form associations or
unions could not be more extensive than public order and morality, and
these already appear- in the substantive portion of the Article.
3. Article V(lXg) of Mr. Munshi’s draft was then discussed and it was
decided by a majority vote that the fundamental rights should include the
right to secrecy of correspondence subject to the authority of the Union
Legislature to legislate on the lines of the existing section 26 of the Indian
Post Office Act. Sir Alladi Krishnaswami Ayyar was of the opinion that it
was not necessary to include this as a fundamental right and that it was
best to leave matters to be dealt with under the existing law which may be
modified from time to time by the Union in accordance with the exigencies
of the time.
4. The discussion on item (h) was held over as it may more appropriately
be considered in connection with the prohibition of begar or other forms
of forced labour.
5. It was decided by a majority vote that no separate provision as in sub¬
section (2) of Article V need be made in regard to the freedom of the press
in view of the right to freedom of speech and expression already included.
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FRAMING OF INDIA'S CONSTITUTION
Sub-clause (3) of Article V was decided to be dropped.
During the discussion of sub-clause (4), it was pointed out to the com¬
mittee that the expression “due process of law” has been judicially inter¬
preted to cover not merely procedure but also substantive rights. If sub¬
clause (4) were included as a fundamental right, tenancy legislation which
takes away certain rights from landlords and transfers them to tenants
without payment of compensation may become invalid except on payment
of compensation which the court regards as just. To this extent the
enactment of this clause might go further than the Government of India
Act, 1935. After discussion it was decided, by a majority of 5 to 2, that
the clause should be retained.
Article VI(1) of Mr. Munshi’s draft was adopted in the following form:
All persons are equally entitled to freedom of conscience and die right
freely to profess and practise religion in a manner compatible with public
order, morality or health. The right to profess and practise religion
shall not include economic, financial or political activities associated with
religious worship.
Rajkumari Amrit Kaur wanted it to be recorded that the clause is defec¬
tive inasmuch as it might invalidate legislation against anti-social customs
which have the sanction of religion.
It was decided to adopt the following clause in Sir B. N. Rau’s draft:
Every religious denomination shall have the right to manage its own affairs
in matters of religion and to own, acquire and administer property
immovable and movable, and to establish and maintain institutions for
religious or charitable purposes consistently with the rights guaranteed in
this Constitution.
The committee considered the following draft submitted by Sir Alladi
Krishnaswami Ayyar :
Such properties shall not be diverted wholly or in part for purposes
unconnected with their original objects nor be confiscated except on pay¬
ment of just compensation under the laws relating to land acquisition.
Dr. Ambedkar pointed out that the objects of trusts may in some cases
require to be modified. He mentioned examples of trusts for educational
purposes intended only for Hindus; these trusts having been made at a
time when the definition of ‘Hindus’ was circumscribed may be held not to
apply to members of the Scheduled Castes. It was not right to perpetuate
such trusts by a clause in the Constitution. The committee agreed that
this was a valid point and Mr. Munshi promised to submit a re-draft to
cover it.
The committee considered the following draft submitted by Sir Alladi
Krishnaswami Ayyar:
Every religious community or sect or group or individual thereof, to
whatever religion it may belong, shall have a right to build and maintain
places of worship according to the needs of such community or sect or
group subject to the laws and orders of the State in regard to the
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maintenance of public peace and public morality and town planning or
village planning.
It was decided to accept this in some such form as the following to be
drafted by Sir B. N. Rau :
The right to build {daces of worship in any place shall not be denied except
for reasonable cause.
Mr. Masani and Prof. Shah dissented from the inclusion among funda¬
mental rights of any provision guaranteeing institutions belonging to any
religious community. They said they would submit a note of dissent.
The committee agreed to the following clause :
Neither the Union nor any unit thereof shall recognize any religion as
the State religion.
Prof. Shah desired it to be recorded that in his opinion the clause should
be expanded so as to read that the State shall be a solely secular organization.
The committee considered paragraph 20 of Dr. Ambedkar’s memoran¬
dum* and rejected it by 5 votes to 3.
Sub-clause (4) of Article VI of Mr. Munshi’s draft* was accepted in the
following form:
No person may be compelled to pay taxes the proceeds of which are
specifically appropriated in payment of religious requirements.
In clause (S) of Article VI, it was decided to adopt the following draft
of Sir B. N. Rau :
No person attending any school maintained or receiving aid out of public
funds shall be compelled to attend the religious instruction that may be
given in the school.
Sardar Harnam Singh raised the question of the right of Sikhs to wear
and carry kirpans. It was decided to provide in sub-clause (1) of Article VI,
an explanation to the effect that the practice of religion includes in the
case of Sikhs the right to wear and cany kirpans. It was also decided that
it would be provided in the clause dealing with the right to assemble peace¬
ably and without arms that this does not prohibit the Sikhs from wearing
and carrying kirpans.
Sardar Harnam Singh also raised the question of Jhatka meat and sug¬
gested that a provision should be made to the effect that Jhatka meat shall
be provided for Sikhs in public institutions. It was decided that this was
a matter to be dealt with by the Minorities Sub-Committee.
Clause (6) of Article VI was accepted in principle but it was considered
that it required re-drafting.
APPENDIX
CLAUSES AS REVISED
Article V .—Clause (1) (g).—The right of every citizen to the secrecy of his
correspondence.
*Vide Document No. 4{ii).
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FRAMING OF INDIA'S CONSTITUTION
Provision may be made by law to regulate the interception or detention of
articles and messages in course of transmission by post, telegraph or otherwise on
the occurrence of any public emergency or in the interests of public safety or
tranquillity.
(h) Deferred.
Ci) Part already considered and part to be considered.
Clauses (2) and (3).—Omitted.
Clause (4).—No person dial! be deprived of his life, liberty or property without
due process of law.
Clause (5).—Deferred.
Article VI. —Clause (1).—All persons are equally entitled to freedom of con¬
science and the right freely to profess and practise religion in a manner compatible
with public order, morality or health.
Explanation I. —The wearing and carrying of kirpans shall be deemed to be
included in the practice of the Sikh religion.
Explanation II. —The right to profess and practise religion shall not include
economic, financial, political or other secular activities associated with religious
worship.
Add a new clause, on the lines of Article VI of Sir B. N. Rau’s draft.
Every religious denomination shall have the right to manage its own affairs in
matters of religion and to own, acquire and administer property, immovable and
movable, and to establish and maintain institutions for religious or charitable purposes
consistently with the rights guaranteed in this Constitution.
The right to build places of worship in any place shall not be denied except
for reasonable cause.
Clauses (2) and (3).—Deferred.
Clause (4X—No person may be compelled to pay taxes the proceeds of which
are specifically appropriated in payment of religious requirements.
Add new clause on the lines of clause (17) of Dr. Ambedkar’s draft
Neither the Union nor any unit thereof shall recognize any religion as the State
religion.
Clause (5).—No person attending any school maintained or receiving aid out
of public funds shall be compelled to attend the religious instruction that may be
given in the school.
March 27, 1947
Present: Acharya J. B. Kripalani, Sir AUadi Krishnaswami Ayyar, Sardar
Harnam Singh, Prof. K. T. Shah, Mr. K. M. Munshi, Rajkumari Amrit Kaur,
Mr. M. R. Masani, Mrs. Hansa Mehta, Dr. B. R. Ambedkar, Mr. Jairamdas
Daulatrajn.
The draft minutes of yesterday’s meeting were approved.
The draft clauses prepared by Sir B. N. Rau in the light of the discussion
held yesterday were approved in the form shown in the Appendix.
Mr. Munshi submitted a revised draft on the question of the diversion
of trust properties. It was decided by a majority of 5 to 3 to drop this
matter altogether from the chapter on fundamental rights. Mr. Jairamdas
Daulatram, Dr. Ambedkar and Mr. Munshi said that they would submit
minutes of dissent.
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2. Sir Alladi Krishnaswami Ayyar proposed a clause as in section 44, sub*
section 6 of the Irish Constitution, but excluding educational institutions. The
insertion of such a clause was accepted.
3. Clause (6) of Article VI was accepted in the following form:
No person under the age of 18 shall be converted to any religion other
than the one in which he was born or be initiated into any religious order
involving loss of civil status.
4. Clause (7) of Article VI was passed in the following form:
Conversion from one religion to another brought about by coercion or
undue influence shall not be recognized by law and the exercise of such
coercion or undue influence shall be an offence.
5. Clauses (2), (3), (8) and (9) of Article VI were considered as being out¬
side the scope of the Fundamental Rights Sub-Committee. They may come
within the scope of the Minorities Sub-Committee.
6. Clause (10) of Article VI was accepted.
7. There was discussion on Article VIII, clauses (1) and (2). In the course
of the discussion it appeared that there was some difference of opinion as
to whether the right to primary education is a justiciable fundamental right.
It was agreed by a majority that it should be included among justiciable
rights. The principle of the two clauses was accepted subject to the under¬
standing that the time limit within which the State shall provide primary
education to all children below 14 shall be 10 years.
8. Sub-clause (3) of Article VIII was accepted by a majority in the
following form:
Every citizen is entitled to have facilities provided for learning the national
language either in the Devanagari or the Persian script at his option.
9. Clause (4) of Article VIII of Mr. Munshi’s draft was adopted in the
following form:
All citizens shall have equal opportunities of receiving education.
Nothing herein contained shall preclude the State from providing special
facilities for educationally backward sections of the population.
Sir Alladi Krishnaswami Ayyar said that while he had no objection to
this in principle he was not in favour of including it in the list of justiciable
fundamental rights.
10. Clauses (1) and (2) of Article VII were considered to be
non-justiciable.
There was considerable discussion on clause (3). It was agreed that a
clause in the following form should be included :
Every form of slavery or traffic in human beings is abolished and contra¬
vention of this prohibition shall be an offence.
It was also agreed that begar (a form of forced labour) should be prohi¬
bited. As regards other forms of forced labour the committee decided by a
majority vote that provision should be included prohibiting such labour, but
subject to certain exceptions. It was decided by 5 votes to 4 that they should
cover specified forms of public service other than service in the armed
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forces. Mr. Masani, Rajkumari Amrit Kaur, Mr. Jairamdas Daulatram and
Mrs. Hansa Mehta stated that they would submit a minute of dissent. A
separate vote was taken on the proposal whether military service should
also be excepted. The proposal was lost by 5 to 4. The dissenting members
said that they would submit a minute of dissent.
11. Clause (4) was decided to be dropped.
12. Clause (5) of Article VII was passed in the following amended form:
Employment of children under 14 years of age in mines, factories and
hazardous employment shall not be permitted.
13. Clause (6) was decided to be dropped.
14. Clause (1) and sub-clauses (a) and (b) of clause (2) of Article IX were
omitted.
APPENDIX
CLAUSES AS REVISED
Article VI. —After clause (5) insert new clause, adapted from Article 44, clause (2),
paragraph 6 of the Irish Constitution :
The property of any religious body shall not be diverted save for necessary
works of public utility and on payment of compensation.
Clause (6).—No person under the age of 18 shall be converted to any religion
other than the one in which he was bom or be initiated into any religious order
involving a loss of civil status.
Clause (7).—Conversion from one religion to another brought about by coercion
or undue influence shall not be recognized by law and the exercise of such coercion
or undue influence shall be an offence.
Clauses (2), (3), (8) and (9).—Omitted.
Clause (10).—Subject to the law of the Union every monument or (dace or object of
artistic or historic interest declared by such law to be of national importance is
guaranteed immunity from spoliation, destruction, removal, disposal or export, as
the case may be, and all such monuments or places or objects shall be preserved and
maintained according to the law of the Union.
Article VIII. —Clauses (1) and (2).—Substitute new clause :
Every citizen is entitled as of right to free primary education, and it shall be
incumbent on every unit of the Union to provide within a period of 10 years
from the commencement of this Constitution for free and compulsory primary
education for all children until they complete the age of 14 years.
Clause (3).—Every citizen is entitled, as part of his right to free primary education,
to have facilities provided for learning the national language either in the Devanagari
or the Persian script at his option.
Clause (4).—Equal opportunities of education shall be open to all citizens :
Provided that nothing herein contained shall preclude any unit from providing
special facilities for educationally backward sections of the population.
Article VII. —Clauses (1) and (2).—Non-justiciable.
Clause (3).—(a) Every form of slavery or traffic in human beings is hereby pro¬
hibited and any contravention of this prohibition shall be an offence.
(b) No be gar (a form of forced labour) shall be permitted within the Union.
(c) No involuntary servitude, except as a punishment for crime whereof the party
shall be duly convicted, or as a compulsory service under any general scheme of
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education shall exist within the Union or any place subject to its jurisdiction.
(d) Conscription for military service or training or for any work in aid of military
operations is hereby prohibited.
Clause (4).—Omitted.
Clause (5).—No person shall engage any child below the age of 14 years to work in
any mine or factory or in any hazardous employment
Clause (6).—Omitted.
Article IX .—Clause (1).—Omitted.
Clause (2) (a) and (b).—Omitted.
March 28, 1947
Present: Acharya J. B. Kripalani, Sir Alladi Krishnaswami Ayyar,
Rajkumari Amrit Kaur, Mrs. Hansa Mehta, Dr. B. R. Ambedkar, Mr. M. R.
Masani. Prof. K. T. Shah, Mr. K. M. Munshi, Mr. Jairamdas Daulatram.
At the outset Prof. K. T. Shah wanted to know when the report of the
sub-committee would be finalised and whether the members would get suffi¬
cient opportunity to study it, to express their opinion and to send their
minutes of dissent, if necessary. He asked that the dates of the meetings
of the various sub-committees and of the Constituent Assembly be settled
now, so that members could adjust their programme accordingly. The
following time table was suggested by the sub-committee and the Secretary
stated during the course of the day that it had been approved by the President
and the chairmen of the committees concerned.
Sub-Committee on Fundamental Rights to sit from day to day till it
completes its work, subject to approval of final draft report.
This is expected to take the committee till 1-4-47
Draft report and clauses to be circulated to members 5-4-47
Meetings of Fundamental Rights Sub-Committee ") 1 4 -4- 4 7
(also, if necessary, joint meeting with Union >15-4-47
Powers Committee) J 16-4-47
Meetings of the Union Powers Committee some time ") 14-4-47
during >15-4-47
J 16-4-47
Sub-Committee on Minorities 17-4-47
Advisory Committee (full committee) to consider the
report of the Sub-Committee on Fundamental >21-4-47
Rights J
Constituent Assembly 28-4-47
The draft minutes of yesterday’s meeting were approved.
The draft clauses as prepared by Sir B. N. Rau were then taken up.
Mr. Masani sought the permission of the committee to reopen the dis¬
cussion on clause (10) of Article VI, as, in his opinion, it was a matter
for the Union Powers Committee to consider. It was decided by 5 to 3
votes that the clause be retained.
On a suggestion of Mr. K. M. Munshi the previous decision of the
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committee regarding compulsory military service was considered afresh. The
proposal to insert a prohibition of compulsory military service was put to
vote and carried by 5 against 3. At the instance of Dr. Ambedkar a separate
vote was taken on the question whether compulsory military training as dis¬
tinguished from military service should be exempted. This was lost by 5
against 4. It was decided to insert a provision on the lines of the American
clause against “slavery and involuntary servitude” and also a specific provi¬
sion prohibiting conscription for military service. With regard to this latter
provision, Mr. Munshi wanted to insert a clause on the following lines: “No
person who has any conscientious objection should be compelled to join the
armed forces or to undergo military training”. This amendment was not
agreed to. But the committee agreed by majority to add a clause exempting
compulsory service undo' any general scheme of education.
The draft clauses as revised in the light of the above discussions were
approved in the form shown in the Appendix.
The consideration of sub-clauses (c) and (d) of clause (2) of Article IX
was postponed and office was asked to examine the existing statutory provi¬
sions relating to previous authorizations.
Clauses (1), (2), and (3) of Article X were dropped.
Clause (4) was then discussed. There was a long discussion as to the
precise form in which section 299 of the Govt, of India Act should be incor¬
porated. The discussion turned on (1) whether movable property is also to
be added, (2) whether the expression “just compensation” should be substi¬
tuted for “compensation”, and (3) whether the Legislature is to be given the
power to fix the amount of compensation. The clause was finally adopted
in the following form :
No property, movable or immovable, of any person or corporation
including any interest in any commercial or industrial undertaking
shall be taken or acquired for public use unless the law provides for
the payment, according to the principles previously determined, of just
compensation for the property acquired.
Clause (5) was decided to be dropped.
At this stage Mr. Masani suggested that a provision should be made for a
common civil code applicable to all citizens. It was decided by a majority
that this was outside the scope of fundamental rights. The minority con¬
sisted of Mr. Masani, Rajkumari Amrit Kaur, Mrs. Hansa Mehta and
Dr. Ambedkar.
Article XI was decided to be dropped.
Mr. Masani proposed that a clause in the following form, based on Article
54 of the Swiss Constitution, be included:
No impediments to marriages between citizens shall be based merely upon
difference of religion.
The proposal was lost by 5 votes to 4. The minority consisted of Mr.
Masani, Rajkumari Amrit Kaur, Mrs. Hansa Mehta and Dr. Ambedkar.
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Dr. Ambedkar proposed that there should be no difference between legiti¬
mate and illegitimate children as far as the law of inheritance was concerned
and that some provisions to this effect should be inserted. This was negatived
by 6 votes against 3.
Mrs. Hansa Mehta desired that provision be made prohibiting child
marriages. It was decided that the matter be taken up at the stage when
non-justiciable rights are considered.
Clause (1) of Article XII was accepted in the following form:
No one shall be convicted of crime except for violation of a law in
effect at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that applicable at the time of
the commission of the offence.
Cause (2) was passed in the following form:
No person shall be tried for the same offence more than once and he
shall not be compelled in any criminal case to be a witness against him¬
self.
The consideration of the last portion of this clause regarding “burden
of proof* was deferred and the office was asked to collect further informa¬
tion on this point.
APPENDIX
CLAUSES AS REVISED
Article IX. —Clause (2), sub-clauses (c) and (d).—Deferred.
Article X. —Clauses (1), (2) and (3).—Omitted.
Clause (4).—No property, movable or immovable, of any person or corporation
including any interest in any commercial or industrial undertaking shall be taken
or acquired for public use unless the law provides for the payment of just compen¬
sation for the property taken or acquired and specifies the principles on which and
the manner in which the compensation is to be determined.
Clause (5).—Omitted.
Article XI. —Omitted.
Article XII. —Clause (1).—No person shall be convicted of crime except for
violation of a law in effect at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that applicable at the time of
the commission of the offence.
Clause (2).—No person shaU be tried for the same offence more than once nor be
compelled in any criminal case to be a witness against himself.
March 29, 1947
Present: Acharya J. B. Kripalani, Sir Alladi Krishnaswami Ayyar,
Rajkumari Amrit Kaur, Mrs. Hansa Mehta, Dr. B. R. Ambedkar, Mr. M. R.
Masani (morning session only), Mr. K. M. Munshi, Mr. Jairamdas Daulatram.
The draft minutes of yesterday’s meeting were approved.
The draft clauses prepared by Sir B. N. Rau in the light of the discussions
yesterday were approved in the form shown in the Appendix.
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2. The insertion of a clause on the following lines, namely, “A person
accused of an offence is presumed to be innocent until his guilt has been
established” was decided by a majority of 4 to 2 to be omitted from the
list of fundamental rights.
3. The discussion on “previous authorizations” referred to in the minutes
was decided to be postponed.
4. Article XII, sub-clause (3) of Mr. Munshi’s draft was accepted.
5. It was decided that sub-clause (4) and (7) should be taken up with
the clauses dealing with untouchability.
6. Sir B. N. Rau was requested to prepare a draft on the point raised
in clause (5) dealing with imprisonment for civil debts on the lines of the
existing provisions in the Code of Civil Procedure. Discussion was post¬
poned till the draft was ready.
7. There was considerable discussion on clause (6) of Article XII. There
was unanimity of opinion that the principle enunciated in this clause should
find a {dace in the Union Constitution, but there was difference of opinion
as to whether the clause should be included among the fundamental rights
or should be dealt with as a Union power apart from fundamental rights.
It was decided by a majority of 4 to 3 that it should be included in the
list of fundamental rights; and Sir B. N. Rau was asked to prepare an
amended draft for consideration.
8. Clause (5) of Article V of Mr. Munshi’s draft was then taken up. The
committee came unanimously to the following conclusions :
(1) Universal adult suffrage must be guaranteed by the Constitution.
(2) Elections shall be free, secret and periodical.
(3) Elections shall be managed by an independent commission set up
under Union law.
Sir B. N. Rau was asked to prepare a draft for consideration.
During the discussion of the above subject, Rajkumari Amrit Kaur and
Mrs. Hansa Mehta raised the question as to whether a citizen who has
strong objections to the system of separate electorates should be compelled
either to vote in separate electorates or to forgo voting altogether. There
was discussion as to whether this is an appropriate subject for the Funda¬
mental Rights Sub-Committee or the Minorities Sub-Committee. No deci¬
sion was taken and Rajkumari Amrit Kaur reserved the right to bring it up
again at an appropriate stage.
9. The committee then discussed clause (3) of Article I of Sir B. N. Rau’s
draft dealing with free trade within the limits of the Union. It was unani¬
mously agreed that so far as the units were concerned, the provisions con¬
tained in the draft should be included. There was discussion as to whether
the Union should have power to regulate internal customs duties or, as in
the Australian Constitution, should have no such power. It was agreed that
the Union should have no power to restrict free trade as between the units
except on stated grounds prescribed by the law of the Union. Mr. Munshi
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131
referred, in this connection, to the fact that several Indian States depend
upon internal customs for a considerable part of their revenues and pointed
out that it would be necessary to make adjustments during the transition
period to meet this difficulty. Sir B. N. Rau was requested to prepare a
draft for consideration.
10. Article II, Section I of Dr. Ambedkar’s memorandum was then taken
up and the following decisions reached :
(1) There should be a provision as in the second sentence of clause (1).
It was thought that such a provision may be included in the clause dealing
with titles.
(2) There should be a clause as in Article IV(2) of Sir B. N. Rau’s draft
providing that there shall be no discrimination against any person (not merely
any citizen) in regard to the use of wells, tanks, etc. In addition, it should
be provided that untouchability is abolished.
11. Article UI(8) of Mr. Munshi’s draft was accepted.
12. Clauses (1), (2) and (3) of Article I of Mr. Munshi’s draft were agreed
to be dropped. Clause (4) was accepted in the following form :
All existing laws or usages in force within the territories of the Union
inconsistent with the fundamental rights and duties shall stand abrogated
to the extent of such inconsistency, nor shall any such right or duty be
taken away or abridged.
13. Clause (d) of Article VI as revised on 26-4-47 was decided to be
amplified so as to read as follows:
All persons are equally entitled to freedom of conscience and the right
freely to profess and practise religion in a manner compatible with public
order, morality or health and with the other rights guaranteed by the
Constitution.
14. There was considerable discussion on the question of the writs to be
provided for in the Constitution to enable a citizen to get relief when his
fundamental rights were infringed. Sir Alladi Krishnaswami Ayyar
proposed the following draft from which he was prepared to drop the words
“and laws of the Union” :
On a complaint being made by or on behalf of any person that he is
being unlawfully detained, the High Courts in the several Provinces or
States and the Supreme Court and any and every judge thereof shall forth¬
with enquire into the same and may make an order requiring the
person in whose custody such person shall be detained to produce the
body of the person so detained before such court or judge without
delay and to certify in writing as to the cause of the detention and
such court or judge shall thereupon order the release of such person
unless satisfied that he is being detained in accordance with the law.
That in addition to the remedy provided for in para 1, such other reme¬
dies and writs shall be available to anyone whose fundamental rights are
infringed as might be provided for by the Constitution and laws of the
Union and the Supreme Court of the Union and other courts shall have
such jurisdiction and authority as they might be invested with in that
behalf.
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The majority were of the opinion that writs other than habeas corpus
should also be specified. It was finally agreed that there should be a clause
to the effect that the right to have access to the Supreme Court to get writs
of the nature of habeas corpus, mandamus, prohibition and certiorari should
itself be a fundamental right. It was decided that a suitable clause should
be drafted and placed before the committee tomorrow.
Rajkumari Amrit Kaur proposed and the committee agreed that before
the end of this meeting, the committee should go through all the clauses
separately and place for their information those which impose positive obli¬
gations on the State and those which impose restrictions on the State.
APPENDIX
CLAUSES AS REVISED
Article XIL —Clause (2).—Provision regarding burden of proof.—Dropped.
Clause (3).—No person shall be subjected to prolonged detention preceding trial
to excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment.
Clause (6).—(a) Full faith and credit shall be given throughout the territories of
the Union to the public acts, records and judicial proceedings of the Union and
every unit thereof, and the manner in which such acts, records and proceedings
shall be proved and effect thereof determined shall be prescribed by the law of the
Union.
(b) Final civil judgments delivered in any unit shall be executed throughout the
Union subject to such conditions as may be imposed by the law of the Union.
Article V. —Clause (5).—(a) Every citizen not below 21 years of age shall have the
right to vote at any election to the Legislature of the Union and of any unit thereof,
or, where the Legislature is bicameral, to the lower chamber of the Legislature,
subject to such disqualifications on the ground of mental incapacity, corrupt practice
or crime as may be imposed, and subject to such qualifications relating to residence
within the appropriate constituency, as may be required by or under the law.
(b) The law shall provide for free and secret voting and for periodical elections
to the Legislature.
(c) The superintendence, direction and control of all elections to the Legislature
whether of the Union or of a unit, including the appointment of Election Tribunals,
shall be vested in an Election Commission for the Union or the unit, as the case may
be, appointed, in all cases, in accordance with the law of the Union.
Clause (3) of Article l of Sir B. N. Rau's draft .—Subject to regulation by the
law of the Union, trade, commerce and intercourse among the units, whether by
means of internal carriage or by ocean navigation, shall be free :
Provided that any unit may by law impose reasonable restrictions thereon in
the interest of public order, morality or health.
Dr. Ambedkar's draft , Article II. Section I.
Clause (3).—At the end of the clause relating to equality of persons before law
[Article III (1) in clauses as revised on 24-3-47] add the following :
Any existing enactment, regulation, judgment, order, custom or interpretation of
law by which any penalty, disadvantage or disability is imposed upon or any dis¬
crimination is made against any citizen shall, as from the day on which this
Constitution comes into operation, cease to have any effect
Clause (4).—(a) There shall be no discrimination against any person on grounds
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133
only of caste, colour or creed in regard to the use of wells, tanks, roads, schools
and places of public resort maintained wholly or partly out of public funds or
dedicated by persons to the use of the general public.
(b) “Untouchability” is abolished and the practice thereof shall be an offence.
(c) The provision relating to freedom of conscience and the right freely to
profess and practise religion (Article VI, sub-clause (d) of Mr. Munshi's draft as
revised on 26-3-47) was amended so as to include at the end the following words
“and with the other rights guaranteed by this Constitution’*.
Article III of Mr. Munshi’s draft.
Clause (8).—All citizens whether within the territories of the Union or outside
are entitled to the protection of the Union.
Article /.—Clauses (1) to (3).—Omitted.
Clause (4).—All existing laws or usages in force within the territories of the Union
inconsistent with the right guaranteed under this Constitution shall stand abrogated
to the extent of such inconsistency, nor shall the Union or any unit make any law
taking away or abridging any such right
Article Xlll. —(a) The right to move the Supreme Court for the enforcement of
any of the rights guaranteed by the Constitution is also hereby guaranteed.
(b) For the purpose of enforcing any such right, the Supreme Court shall have
power to issue directions in the nature of the writs of habeas corpus, mandamus,
prohibition and certiorari.
March 30, 1947
Present: Achaiya J. B. Kripalam, Sir Alladi Krishnaswami Ayyar,
Rajkumari Amrit Kaur, Mrs. Hansa Mehta, Dr. B. R. Ambedkar, Mr. K. M.
Munshi, Mr. Jairamdas Daulatram.
The draft minutes of yesterday’s meeting wore approved.
The draft clauses prepared by Sir B. N. Rau in the light of the discussions
yesterday were approved in the form shown in the Appendix.
In the course of the discussion on the draft clauses, it was agreed to drop
the point regarding imprisonment for civil debts and also the point referred
to in para 10(1) of the minutes.
With reference to Article 1(4), Sir Alladi Krishnaswami Ayyar pointed out
that in making the final draft, it should be made clear that the clause refers
only to specified rights and not to all rights.
Sir Alladi also read a note on the subject matter of Article XIII which
in the form prepared by Sir B. N. Rau was acceptable to him and to the
rest of the committee.
It was decided to insert a clause as in para 21 erf Dr. Ambedkar’s memo*
randum to the effect that the Union Legislature shall make laws to give effect
to such provisions as require legislation for that purpose and to prescribe
p unishme nts for those acts which are declared to be offences.
Clause (1) of Article XIV of Mr. Munshi’s draft and para 16 of Dr.
Ambedkar’s memorandum were discussed and it was decided to add an
explanation to Article VI on the following lines on the basis of a provision
in the constitution of Yugoslavia: “No person may refuse to perform
lo
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FRAMING OF INDIA'S CONSTITUTION
civil obligations or duties on the ground of the requirements of his
religion”. Sir Alladi Krishnaswami Ayyar considered this explanation as
unnecessary.
Sub-clause (3) of Article XIV of Mr. Munshi’s draft was considered to
be far too wide and the committee decided that it was enough to provide
only for the suspension of the habeas corpus writ in the event of a war or a
rebellion as in clause (3) of Article 40 of the Irish Constitution.
Clause (4) of Article XIV of Mr. Munshi’s draft was accepted.
The committee then turned to the examination of the directive principles
of social policy and considered that the following should be provided for
under this head:
(1) The State shall strive to promote the welfare of the whole people by
securing and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of national
life.
(2) (a) The State shall, in particular direct its policy towards securing that
the citizens, men and women equally, have the right to adequate means of
livelihood.
(b) That the ownership and control of the material resources of the country
are so distributed as best to subserve the common good.
(c) That the operation of free competition shall not be allowed so to
develop as to result in the concentration of the ownership and control of
essential commodities in a few individuals to the common detriment.
(d) That the strength and health of workers, men and women, and the
tender age of children shall not be abused and that citizens shall not be
forced by economic necessity to enter avocations unsuited to their age or
strength.
(e) That childhood and youth are protected against moral and material
abandonment.
(f) Here insert the substance of Article 13, at page 155 of Lauterpacht’s
International Bill of the Rights of Man.
(g) Here insert the substance of Article 14, ibid.
(h) Here insert the substance of clause (1) of Article VII of Mr. Munshi’s
draft.
(i) Here insert a clause regarding maternity benefits for women workers.
(j) Here insert a clause providing for equal pay for equal work for men
and women.
(k) Here insert a clause as in the first sentence of Article XXIV of the
Japanese Constitution,
(l) Here insert a clause regarding a uniform civil code for the country.
(m) Here insert a clause providing for the following: the preservation of
the purity and health of the family and its social advancement is the task
both of the State and of the local authorities. Motherhood has a claim upon
the protection and care of the State.
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The consideration of a para. 3 of Dr. Ambedkar’s memorandum was
postponed.
APPENDIX
CLAUSES AS REVISED
Dr. AmbedkaPs Memorandum
Article II. —Section I, clause (21). The Union Legislature shall make laws to
give effect to such provisions as require legislation and to prescribe punishment for
those acts which are declared to be offences in this chapter.
Article II. —Section II, clause (3).—Deferred.
Mr. Munshfs draft—Article XIV
Clause (1).—To the clause relating to “Freedom of conscience” (Article VI, sub¬
clause (1), in “Clauses as revised on 26-3-47”) add the following new Explanation :
Explanation III .—No person shall refuse the performance of civil obligations or
duties on the ground of the requirements of his religion.
Clause (2).—Omitted.
Clause (3).—The privilege of the writ of habeas corpus shall not be suspended
unless when, in cases of rebellion or invasion, or other grave emergency, the public
safety may require it.
Clause (4).—The Union Legislature by law shall be entitled to determine to what
extent certain rights guaranteed by this Constitution shall be restricted or abrogated
for the members of the armed forces or forces charged with the maintenance of
public order so as to ensure fulfilment of their duties and the maintenance of
discipline.
Directive Principles of Social Policy
The principles of social policy set forth in this Part are intended for the general
guidance of the appropriate legislatures and governments in India (hereinafter called
collectively as the State). The application of these principles in legislation and
administration shall be the care of the State and shall not be cognizable by any
court
1. The Union and every unit thereof shall strive to promote the welfare of the
whole people by securing and protecting as effectively as it may a social order in
which justice, social, economic and political, shall inform all the institutions of the
national life.
2. The Union and every unit thereof shall, in particular, direct their policy
towards securing :
(i) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(ii) that the ownership and control of the material resources of the community
are so distributed as best to subserve the common good;
Qii) that the operation of free competition shall not be allowed so to develop
as to result in the concentration of the ownership and control of essential
commodities in a few individuals to the common detriment;
(iv) that there shall be equal pay for equal work for both men and women;
(v) that the strength and health of workers, men and women, and the tender
age of children shall not be abused and that citizens shall not be forced
by economic necessity to enter avocations unsuited to their age and
strength;
(vi) that childhood and youth are protected against exploitation and against
moral and material abandonment
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3. The Union and every unit thereof shall, within the limit of their economic
capacity and development, make effective provisions for securing the right to work,
to education and public assistance in case of unemployment, old age, sickness,
disablement, and other cases of undeserved want (Lauterpacht, p. 155).
4. The Union and every unit thereof shall make provision for securing just and
humane conditions of work and for maternity relief for workers (Lauterpacht, p.
155).
5. The Union and every unit thereof shall endeavour to secure, by suitable
legislation, economic organization and in other ways, to all workers, industrial or
otherwise, work, a living wage, conditions of work ensuring a decent standard of
life and full enjoyment of leisure and social and cultural opportunities.
(Article VII, clause (1) of Mr. Munshi’s draft The substance of clause (2) of
Mr. Munshi’s draft is included in rule 3 above.)
6. The Union and every unit thereof shall endeavour to secure for the citizens
a uniform civil code.
7. Marriage shall be based only on the mutual consent of both sexes and it
shall be maintained through mutual co-operation with the equal rights of husband
and wife as a basis. (Japanese Constitution, Article XXIV.) Motherhood has a
claim upon the protection and care of the State. (Weimar, p. 119.)
March 31, 1947
Present: Acharya J. B. Kripalani. Rajkumari Amrit Kaur, Mrs. Hansa
Mehta, Dr. B. R. Ambedkar, Mr. K. M. Munshi, Mr. Jairamdas Daulatram.
The draft minutes of yesterday’s meeting were approved.
The draft clauses prepared by Sir B. N. Rau in the light of the discussions
yesterday were approved in the form shown in Appendix.
It was decided by a majority to insert the following preamble to
the directive principles of social policy :
The principles of social policy set forth in this Part are intended for the
general guidance of the appropriate legislatures and governments in India
(hereinafter called collectively as the State). The application of these
principles in legislation and administration shall be the care of the State
and shall not be cognizable by any court
Some clauses contain references to the Union and some to the Union and
every unit thereof. It was decided that the provisions approved by the com¬
mittee should go into a separate chapter and should be expressed to be
binding on the Union and all the units. The committee thought that Sir
B. N. Rau’s suggestion to define the State in a preamble as referring to the
Union as well as the units and using the word State in the clauses was
suitable.
Part II of Sir B. N. Rau’s Notes* on Fundamental Rights was considered,
and it was decided that items (IX (2), (4) and (6) under Part A should be
incorporated in the Fundamental Rights. It was decided that in item (4X
the word “and” in the second sentence should be omitted and the expression
*Vide Document No. 2.
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137
“in particular erf the Scheduled Castes and the aboriginal tribes” should be
enclosed in brackets. The expression “Scheduled Castes” which has reference
to the Government of India Act 1935 may be amended at a subsequent
stage.
(IV) DRAFT REPORT OF THE SUB-COMMITTEE
April 3. 1947
Council House,
New Delhi, the 3rd April 1947.
To
The Chairman,
Advisory Committee on Minorities,
Fundamental Rights, etc.
Sir,
We, the undersigned, members of the Sub-Committee on Fundamental
Rights appointed by the Advisory Committee on the 27th February 1947
have considered the matter referred to us and have now the honour to submit
this our report
2. We recommend that provisions on the lines set out in the Annexure be
incorporated in the new Constitution so as to be binding upon all authorities,
whether of the Union or the units.
3. We have attempted to divide fundamental rights into two classes:—
(1) Justiciable rights, that is to say, rights which can be normally
enforced by legal action, and
(2) Non-justiciable rights, that is to say, those which are not normally
either capable of, or suitable for, enforcement by legal action.
Typical of the former is the right which requires that the State shall not
deprive a citizen of his liberty without due process of law. It is obvious
that if this right is infringed, the citizen can and should have redress in a
court of law, for it is possible for the court to find in a given case whether
the right has been infringed or not Typical of the latter is the right which
requires the State to endeavour to secure a decent standard of life for all
workers. Obviously, it is as impossible for a worker to prove, as for a
court to find, that a general right of this kind has been infringed in a given
case. We have, accordingly, put justiciable rights and non-justiciable rights
into separate chapters and have made it clear that the latter are intended to
be directions for the general guidance of the State and are not cognizable
by any court.
(We have, etc.)
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ANNEXURE
FUNDAMENTAL RIGHTS
Chapter I
Justiciable Rights
Definitions
1. In this and the next chapter, unless the context otherwise requires :—
(i) "The State** includes the legislatures and the governments of the Union and
the units and all local or other authorities within the territories of the
Union.
(ii) “The Union** means the Union of India.
(iii) “The law of the Union*’ includes any law made by the Union Legislature
and any existing Indian law as in force within the Union or any part
thereof.
Application of laws
2. Any law or usage in force within the territories of the Union immediately
before the commencement of this Constitution and any law which may hereafter
be made by the State inconsistent with the provisions of this 8 h & U be
void to the extent of such inconsistency.
Citizenship
3. Every person bom or naturalized in the Union and subject to the jurisdiction
thereof shall be a citizen of the Union. Further provisions governing the accrual,
acquisition and termination of Union citizenship may be made by the law of the
Union.
4. All citizens whether within the territories of the Union or outside are entitled
tt> the protection of the Union.
Right to equality
5. (1) All persons within the Union shall be equal before the law. No person
shall be denied the equal protection of the laws within the territories of the Union.
There shall be no discrimination against any person on grounds of religion, race, caste,
language or sex.
In particular—
(a) There shall be no discrimination against any person on any of the grounds
aforesaid in regard to the use of wells, tanks, roads, schools and places
of public resort maintained wholly or partly out of public funds or dedicated
to the use of the general public.
(b) There shall be equality of opportunity for all citizens—
(I) in matters of public employment;
(ii) in the exercise or carrying on of any occupation, trade, business or
profession;
and no citizen shall on any of the grounds aforesaid be ineligible for public
office or be prohibited from acquiring, holding or disposing of property or
exercising or carrying on any occupation, trade, business or profession within
the Union.
(2) Any enactment, regulation, judgment, order, custom or interpretation of law,
in force immediately before the commencement of this Constitution, by which any
penalty, disadvantage or disability is imposed upon or any discrimination is made
against any citizen on any of the grounds aforesaid shall cease to have effect
6. “Untouchability** is abolished and the practice thereof shall be an offence.
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139
7. No titles except those denoting an office or a profession shall be conferred
by the Union.
No citizen of the Union and no person holding any office of profit or trust under
the State shall, without the consent of the Union, accept any present, emolument,
office or title of any kind from any foreign State.
National language
8. Hindustani, written either in the Devanagari or the Persian script at the option
of the citizen, shall, as the national language, be the first official language of the
Union. English shall be the second official language for such period as the Union
may by law determine. All official records of the Union shall be kept in Hindustani
in both the scripts and also in English until the Union by law otherwise
provides.
Rights to freedom
9. There shall be liberty for the exercise of the following rights subject to public
order and morality :
(a) The right of every citizen to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or
defamatory matter shall be actionable or punishable in accordance with
law.
(b) The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are likely
to cause a breach of the peace or are a danger or nuisance to the general
public or to prevent or control meetings in the vicinity of any chamber of
a Legislature.
(c) The right of the citizens to form associations or unions.
Provision may be made by law to regulate and control in the public interest
the exercise of the foregoing right provided that no such provision shall
contain any political, religious or class discrimination.
(d) The right of every citizen to the secrecy of his correspondence.
Provision may be made by law to regulate the interception or detention of
articles and messages in course of transmission by post, telegraph or other¬
wise on the occurrence of any public emergency or in the interests of public
safety or tranquillity.
10. The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated and no
warrants shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the persons or things to be
seized.
11. No person shall be deprived of his life, liberty or property without due
process of law.
12. (1) Every citizen not below 21 years of age shall have the right to vote
at any election to the Legislature of the Union and of any unit thereof, or, where
the Legislature is bicameral, to the lower chamber of the Legislature, subject to such
disqualifications on the ground of mental incapacity, corrupt practice or crime
as may be imposed, and subject to such qualifications relating to residence within
the appropriate constituency, as may be required by or under the law.
(2) The law shall provide for free and secret voting and for periodical elections
to the Legislature.
(3) The superintendence, direction and control of all elections to the Legislature
whether of the Union or of a unit, including the appointment of Election Tribunals
shall be vested in an Election Commission for the Union or the unit, as the case
may be, appointed, in all cases, in accordance with the law of the Union.
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13. Subject to regulation by the law of the Union, trade, commerce, and inter¬
course among the units, whether by means of internal carriage or by ocean naviga¬
tion, shall be free :
Provided that any unit may by law impose reasonable restrictions thereon in the
interest of public order, morality or health.
14. Every citizen of the Union shall be free to move throughout the Union, to
reside and settle in any part thereof, to acquire property, and to follow any occupa¬
tion, trade, business or profession subject to such reasonable restraints as the law
may impose.
15. (1) (a) Slavery,
(b) traffic in human beings,
(c) the form of forced labour known as begar,
(d) any form of involuntary servitude except as a punishment for crime
whereof the party shall have been duly convicted,
are hereby prohibited and any contravention of this prohibition shall be an offence.
Explanation .—Compulsory service under any general scheme of education does
not fall within the mischief of this clause.
(2) Conscription for military service or training, or for any work in aid of
military operation is hereby prohibited.
(3) No person shall engage any child below the age of 14 years to work
in any mine or factory or any hazardous employment
Rights relating to religion
16. All persons are equally entitled to freedom of conscience and the right freely
to profess and practise religion subject to public order, morality or health and
to the other provisions of this chapter.
Explanation /.—The wearing and carrying of kirpans shall be deemed to be
included in the practice of the Sikh religion.
Explanation II. —The right to profess and practise religion shall not include any
economic, financial, political or other secular activities that may be associated with
religious worship.
Explanation III .—No person shall refuse the performance of civil obligation or
duties on the ground that his religion so requires.
17. Every religious denomination shall have the right to manage its own affairs
in matters of religion and to own, acquire and administer property, movable and
immovable, and to establish and maintain institutions for religious or charitable
purposes consistently with the provisions of this chapter.
The right to build places of worship in any place shall not be denied except for
reasonable cause.
18. No person may be compelled to pay taxes the proceeds of which are speci¬
fically appropriated to religious purposes.
19. The State shall not recognize any religion as the State religion.
20. No person attending any school maintained or receiving aid out of
public funds shall be compelled to take part in the religious instruction that may
be given in the school.
21. The property of any religious body shall not be diverted, save for necessary
works of public utility and on payment of compensation.
22. No person under the age of 18 shall be converted to any religion other
than the one in which he was born or be initiated into any religious order involving
a loss of civil status.
23. Conversion from one religion to another brought about by coercion or undue
influence shall not be recognized by law and the exercise of such coercion or undue
influence shall be an offence.
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24. Every citizen is entitled as of right to free primary education, and it shall
be the duty of the State to provide within a period of 10 years from the commence¬
ment of this Constitution for free and compulsory primary education for all children
until they complete the age of 14 years.
25. Every dtizen is entitled, as part of his right to free primary education, to
have facilities provided for learning the national language either in the Devanagari
or the Persian script at his option.
26. Equal opportunities of education shall be open to all citizens :
Provided that nothing herein contained shall preclude the State from providing
special facilities for educationally backward sections of the population.
Miscellaneous rights
27. No property, movable or immovable, of any person or corporation, including
any interest in any commercial or industrial undertaking, shall be taken or acquired
for public use unless the law provides for the payment of just compensation for
the property taken or acquired and specifies the principles on which and the manner
in which the compensation is to be determined.
28. (1) No person shall be convicted of crime except for violation of a law in
force at the time of the commission of the act charged as an offence, nor be subjected
to a penalty greater than that applicable at the time of the commission of the
offence.
(2) No person shall be tried for the same offence more than once nor be
compelled in any criminal case to be a witness against himself.
29. No person shall be subjected to prolonged detenticn preceding trial, to
excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment
30. (1) Full faith and credit shall be given throughout the territories of the
Union to the public acts, records and judicial proceedings of the Union and every
unit thereof, and the manner in which such acts, records and proceedings shall
be proved and the effect thereof determined shall be prescribed by the law of the
Union.
(2) Final civil judgments delivered in any unit shall be executed throughout
the Union subject to such conditions as may be imposed by the law of the
Union.
31. Subject to the law of the Union every monument or place or object of artistic
or historic interest, declared by such law to be of national importance, is protected
from spoliation, destruction, removal, disposal or export, as the case may be,
and all such monuments or places or objects shall be preserved and maintained
according to the law of the Union.
Right to constitutional remedies
32. (1) The right to move the Supreme Court for the enforcement of any of the
rights guaranteed by this chapter is also hereby guaranteed.
(2) For the purpose of enforcing any such rights, the Supreme Court shall have
power to issue directions in the nature of the writs of habeas corpus, mandamus,
prohibition and certiorari .
(3) The privilege of the writ of habeas corpus shall not be suspended unless
when, in cases of rebellion or invasion or other grave emergency, the public safety
may require it
33. The Union Legislature may by law determine to what extent any of the rights
guaranteed by this chapter shall be restricted or abrogated for the members of the
armed forces or forces charged with the maintenance of public order so as to
ensure fulfilment of their duties and the maintenance of discipline.
34. The Union Legislature shall make laws to give effect to those provisions of
this chapter which require such legislation and to prescribe punishments for those
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acts which are declared to be offences in this chapter and are not already punish¬
able.
Chapter II
Non-justiciable Rights
35. The principles of policy set forth in this chapter are intended for the general
guidance of the State. The application of these principles in legislation and adminis¬
tration shall be the care of the State and shall not be cognizable by any court
36. The State shall strive to promote the welfare of the whole people by securing
and protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.
37. The State shall, in particular, direct its policy towards securing—
(i) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(ii) that the ownership and control of the material resources of the community
are so distributed as best to subserve the common good;
(iii) that the operation of free competition shall not be allowed so to develop
as to result in the concentration of the ownership and control of essential
commodities in a few individuals to the common detriment;
(iv) that there shall be equal pay for equal work for both men and women;
(v) that the strength and health of workers, men and women, and the tender
age of children shall not be abused and that citizens shall not be forced
by economic necessity to enter avocations unsuited to their age and
strength;
(vi) that childhood and youth are protected against exploitation and against
moral and material abandonment
38. The State shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education and to public
assistance in case of unemployment, old age, sickness, disablement, and other cases
of undeserved want
39. The State shall make provision for securing just and humane conditions of
work and for maternity relief for workers.
40. The State shall endeavour to secure, by suitable legislation, economic
organization and in other ways, to all workers, industrial or otherwise, work, a
living wage, conditions of work ensuring a decent standard of life and full enjoyment
of leisure and social and cultural opportunities.
41. The State shall endeavour to secure for the citizens a uniform civil code.
42. The State shall endeavour to secure that marriage shall be based only on
the mutual consent of both sexes and shall be maintained through mutual co¬
operation, with the equal rights of husband and wife as a basis. The State shall
aho recognize that motherhood has a special claim upon its care and protection.
43. The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled
Castes and the aboriginal tribes, and shall protect them from social injustice and
all forms of exploitation.
44. The State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among its primary
duties.
45. The State shall promote internal peace and security by the elimination of
every cause of communal discord.
46. The State shall promote international peace and security by the elimination
of war as an instrument of national policy, by the prescription of open, just and
honourable relations between nations, by the firm establishment of the understandings
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143
of international law as the actual rule of conduct among governments and by the
maintenance of justice and the scrupulous respect for treaty obligations in the
dealings of organized people with one another.
(V) NOTES AND COMMENTS ON THE DRAFT REPORT
April 4-15, 1947
(a) Alladi Krishnaswami Ayyar’s letter to B. N. Rau
April 4, 1947
I am expecting to receive the formal draft embodying the results of the
decisions readied by the Fundamental Rights Sub-Committee. Meanwhile
there are one or two points bearing upon the dedsions readied, to which I
would like to draw the attention of the committee. The recent happenings
in different parts of India have convinced, more than ever, that all the
fundamental rights guaranteed under the Constitution must be subject
to public order, security and safety though such a provision may to some
extent neutralize the effect of the fundamental rights guaranteed under the
Constitution.
In view of the wide import that may be given to the word religion, its
bearing on sodal legislation and the legislation relating to rights of property
from the time of early establishment of British rule down to the present
day, including the latest enactment relating to temple entry, I feel very
strongly that there is a good deal to be said in favour of what the lady
members have urged and for inserting an explanation to the clause relating
to the freedom of religion on the lines indicated by them. The committee
will realize that if for any reason the Federal Court construes the clause
relating to religion and practice of religion in a wide sense, it may have
the effect of invalidating all existing legislation apart from prohibiting such
legislation for the future. That an apprehension of this sort is not ill-
founded is clear from the very full discussion of section 116 of the Australian
Constitution relating to freedom in matters of religious belief and exercise
of religion in Adelaide Company of Jehovah’s Witnesses v. Commonwealth
(67 Commonwealth Law Reports, 116). I request you to go through the
decision carefully before our next meeting and circulate extracts* from Chief
Justice Latham’s judgment in the case to the members of the committee.
You may state that the judgment is circulated on my suggestion. I doubt
if merely stating that the clause relating to freedom of religion is subject to
other clauses will serve the purpose.
In this connection it may be remembered that when, during the passage
of the Government of India Act, 1935, a deputation of orthodox Hindus
pressed upon Parliament to safeguard religious institutions from interference
*For extracts from the judgment as circulated to Members, see annexure.
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FRAMING OF INDIA’S CONSTITUTION
of any kind by the Legislature. Parliament did not insert any provi¬
sion, as such a provision might stand in the way of social and religious
reform. I request you to consider the terms of the exception or the rider
that may be inserted to the freedom of the religion clause for being placed
before the committee in the next sitting.
I shall be glad if you can communicate the contents of this letter also to
the members of the committee.
ANNEXURE
Adelaide Company of Jehovah's Witnesses Inc .
v.
The Commonwealth
(1943) 67 Com. L. R. 116
(Extracts)
Adelaide Company of Jehovah’s Witnesses, the plaintiffs, were an incorporated
association, which held meetings of a religious character at a place called Kingdom
Hall, in Adelaide, South Australia. Jehovah’s Witnesses regarded the literal inter¬
pretation of the Bible as fundamental to proper religious beliefs, and their beliefs
led them to proclaim and teach publicly, both orally and by means of printed
books and pamphlets, that the British Empire and also other organized political
bodies were organs of Satan. They proclaimed that they were Christians entirely
devoted to the Kingdom of God, and that they could take no part in the political
affairs of the world and must not interfere in the least manner with war between
nations.
2. On 17th January 1941, the Governor-General, acting under the authority
conferred upon him by the National Security (Subversive Associations) Regulations,
declared certain bodies, including the plaintiffs, prejudicial to the defence of the
Commonwealth and the efficient prosecution of the war. On the same day, an
officer of the Commonwealth, acting under the directions of the Attorney-General
of the Commonwealth, entered and took possession of Kingdom Hall and excluded
therefrom the plaintiffs and all persons professing the beliefs of Jehovah’s Witnesses.
On 4th September, 1941, the plaintiffs took out a writ (of the High Court of
Australia) against the Commonwealth, and sought to restrain the Commonwealth
from continuing or repeating the trespass and claimed damages for the trespass
and other reliefs.
3. The plaintiffs contended that the National Security (Subversive Associations)
Regulations and the orders issued thereunder contravened the provisions of section
116 of the Constitution of Australia and also impinged upon the judicial power of
the Commonwealth.
Upon a case stated to the Full Court by Starke J., the High Court of Australia
(Latham C. J., Rich, Starke, McTiernan and Williams JJ.) held that section 116
of the Constitution does not prevent the Commonwealth Parliament from making
laws prohibiting the advocacy of doctrines or principles which though advocated
in pursuance of religious convictions, are prejudicial to the prosecution of war
in which the Commonwealth is engaged and also that section 116 is not infringed
by the National Security (Subversive Associations) Regulations or by their applica¬
tion to the association known as Jehovah’s Witnesses.
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4. A few extracts from the judgment of Latham C. J. are appended herewith :
This proceeding raises important questions with reference to the nature and
extent of the protection which is given to religion under the Constitution of the
Commonwealth. Section 116 of the Constitution is as follows:—The Common¬
wealth shall not make any law for establishing any religion, or for imposing
any religious observance, or for prohibiting the free exercise of any religion,
and no religious test shall be required as a qualification for any office or
public trust under the Commonwealth’.
• * *
It is plain that by this provision it is intended to place some restriction upon
the power of the Commonwealth to enact legislation which favours any religion,
or which interferes with any religion. The principal questions which
arise in the case are:—Does section 116 prevent the Commonwealth
Parliament from legislating to restrain the activities of a body, the existence
of which is, in the opinion of the Governor-General, prejudicial to the defence
of the Commonwealth or the efficient prosecution of the war, if that body
is a religious organization? Is the answer to this question affected by the
fact that the subversive activities of such a body are founded upon the
religious views of its members? Can such a body be suppressed?
• * *
It is sometimes suggested in discussions on the subject of freedom of religion
that, though the civil government should not interfere with religious opinions ;
it nevertheless may deal as it pleases with any acts which are done in pursuance
of religious belief without infringing the principle of freedom of religion.
It appears to me to be difficult to maintain this distinction as relevant to
the interpretation of section 116. The section refers in express terms to the
exercise of religion, and therefore it is intended to protect from the opeiation
of any Commonwealth laws acts which are done in the exercise of religion.
Thus the section goes far beyond protecting liberty of opinion. It protects
also acts done in pursuance of religious belief as part of religion.
• * *
At all periods of human history there have been religions which have involved
practices which have been regarded by large numbers of people as essentially
evil and wicked. Many religions involve the idea of sacrifice, and the
practice of sacrifice has assumed the form of human sacrifice, or animal
sacrifice as appears in the Old Testament, and in many other sacred writings
and traditions. So also religions have differed in their treatment of polygamy.
Polygamy was not reproved in the Old Testament; it has been part of
the Mormon religion; it is still an element in the religion of millions
of Mohammedans, Hindus, and other races in Asia. The criminal religions
in India are well known. The Thugs of India regarded it as a religious
duty to rob and to kill. The practice of suttee, involving the immolation
of the widow upon the funeral pyre of her husband, was for centuries a
part of the Hindu religion.
• * *
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The examples which have been given illustrate the difficulty of the problem
with which a court is confronted when it is asked to determine whether
or not a particular law infringes the constitutional provision by prohibiting
M the free exercise of .religion”. Can any person, by describing (and
honestly describing) his beliefs and practices as religious exempt himself
from obedience to the law? Does section 116 protect any religious belief
or any religious practice, irrespective of the political or social effect of that
belief or practice?
It has already been shown that beliefs entertained by a religious body as
religious beliefs may be inconsistent with the maintenance of civil govern¬
ment The complete protection of all religious beliefs might result in the
disappearance of organized society, because some religious beliefs, as
already indicated, regard the existence of organized society as essentially
evil.
Section 116 does not merely protect the exercise of religion, it protects the
free exercise of religion. The word “free” is vague and ambiguous, as is
shown by the many decisions in this Court and in the Privy Council upon
the meaning of the word “free” in another place when it appears in the
Constitution—in s. 92, which provides for free trade, commerce and inter¬
course between the States. When a slogan is incorporated in a constitution,
and the interpretation of the slogan is entrusted to a court, difficulties will
inevitably arise.
(b) Rajkumari Amrit Kaur’s letter to B. N. Rau
March 31. 1947
I am writing this on behalf of Mrs. Hansa Mehta and myself. She is not
in Delhi and I am, therefore, unable to append her signature along with
mine. She and I went over the draft report together and are agreed on the
following points :
1. We recorded our vote against compulsory service in any form during
the discussions and adhere to this position. We are, therefore, not in
favour of the “explanation” as given under clause IS.
2. We still feel considerable hesitation in accepting clause 16 as worded,
even with explanation II. As we are all aware there are several
customs practised in the name of religion e.g., pcrdah, child marriage,
polygamy, unequal laws of inheritance, prevention of inter-caste
marriages, dedication of girls to temples. We are naturally anxious
that no clause in any fundamental right shall make impossible future
legislation for the purpose of wiping out these evils. As worded,
clause 16 may even contradict or conflict with the provision abolish¬
ing the practice of untouchability in clause 6.
Indeed we have a further fear that validity of existing laws such as the
Sarda Act, and the Widow Remarriage Act may even be questioned.
In the light of the above objections we would like to amend the said
clause as follows :
Freedom of conscience, freedom of religious worship and the free profession
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of religion subject to public order, morality or health and to the other
provisions of this chapter are guaranteed to every citizen.
In other words, we would like “freedom of religious worship” to replace
“free practice of religion”.
3. This is personal to me as I was unfortunately unable to discuss it with
Mrs. Mehta. I would like clause 24 to read as follows:
Every citizen is entitled as of right to free primary education and it shall
be the duty of the State to provide this within a period of 10 years from
the commencement of this Constitution for all children until they complete
the age of 14 years.
4. We would also like to draw the attention of the Fundamental Rights
Sub-Committee to what was, as a matter of fact, brought to their notice by
you in regard to clause 27.
As it stands the clause might interfere not only with future legislation but
might also entail revision of or invalidate past legislation. It would appear
that section 299 of the Government of India Act is more progressive and
fair enough and would, therefore, meet our purpose better.
5. While the non-justiciable rights shall not be cognizable by any court,
we would respectfully urge that they are nonetheless fundamental. We
would, therefore, like this to be stressed either in the foreword or at the end
of clause 35 so that it shall be the duty of the State to take, as soon as
possible, the necessary action in fulfilment of the directives. For example
clause 41 is, in our opinion, very vital to social progress. Indeed all the
non-justiciable rights are fundamental to the well-being and ordered progress
of the State.
(c) B. N. Rau’s notes on the Draft Report
April 8, 1947
Clause 2. In this clause the word “Constitution” has been inserted as an
alternative to the word “Chapter”. Any law or usage in force within the
territories of the Union immediately before the commencement of the Consti¬
tution would be vend not only if it is inconsistent with the provisions of this
chapter but also if it is inconsistent with any of the provisions of the
Constitution: e.g., the provision that only the Union may deal with
defence, foreign affairs, or communications. By restricting the clause
to the provisions contained in this chapter we may give the impression that
the provisions of other chapters may be violated with impunity.
Clause 3. The first part of the clause is adapted from Article XIV,
section 1 of the U.S.A. Constitution; the portion relating to State citizenship
in that Article has been omitted. Citizenship or nationality is part of the
subject of foreign affairs and is therefore an exclusively Union subject. There
cannot be a provincial citizenship as distinct from the citizenship of the
Union, although it may be open to a Province to distinguish different classes
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of Union citizens. For example, a Province may provide that only those
citizens of the Union who have resided in the Province for a certain period
shall be eligible to vote at Provincial elections. By so doing, the Province
does not create a new citizenship, distinct from Union citizenship, but merely
confers a special privilege on a certain class of Union citizens.
The second part of the clause is intended to cover the naturalization laws
which may be passed by the Union or which may be adopted by the Consti¬
tution, e.g., existing Indian laws subject to adaptation.
Clause 4. Adapted from the Weimar Constitution of Germany, Article 112
paragraph 2.
Clause 5. The first part of the main clause is adapted from Weimar
Constitution. Article 109, paragraph 1, but widened so as to be applicable
to all persons, not merely to citizens. The second part of the main clause is
adapted from the U.S.A. Constitution. Amendment XIV, section 1.
The provision in sub-clause (a) follows, for the most part, drafts in the
report of the All Parties Conference, 1928, and the Congress Declaration
of 1933. It will be noticed that the clause as drafted will prejudicially affect
the institution of separate schools, hospitals, etc. for women.
Sub-clause (b) is adapted from section 298 of the Government of India
Act, 1935.
Clause 6. What exactly is meant by the practice of untouchability will
have to be defined in the law meant to implement this provision. See
clause 34.
Clause 7. The first part of the clause is adapted from Danzig Constitu¬
tion, Article 73, paragraph 4. The second part of the clause is drafted on
the lines of the U.S.A. Constitution, Article I, section 9, sub-section (8),
but is much wider in scope as in the Irish Constitution, section 40(2)°.
Clause 8. Adapted from Irish Constitution, section 8.
Clause 9. Sub-clauses (a), (b) and (c) adapted from Irish Constitution,
Section 40(6)1°, sub-clauses (i), (ii) and (iii).
Sub-clause (d). First clause adapted from Weimar Constitution, Article
117. The proviso to this sub-clause is taken from section 26 of the Indian
Post Offices Act.
Clause 10. Adapted in tolo from the U.S.A. Constitution, Amendment IV.
Clause 11. Adapted from the U.S.A. Constitution, Amendment V and
Amendment XIV, section 1.
Clause 12. This secures that the right to vote is not refused to any citizen
who satisfies certain conditions. The idea of an Election Commission to
supervise, direct and control all elections is new.
Clause 13. The first paragraph of the clause is adapted from the Austra¬
lian Constitution, section 92. The proviso is new.
Clause 14. Embodies one of the chief privileges or immunities of the
citizens of the U.S.A., which no State is permitted to abridge, see Amend¬
ment XIV, section 1 . See also Weimar Constitution, Article 111.
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Clause 15 — sub-clause ( 1 ). The provisions relating to “slavery” and
“involuntary servitude” follow Amendment XIII of the U.S.A. Constitution.
The prohibition of begar has been added to them and any contravention of
the general prohibition contained in the clause is made an offence.
Sub-clause (2). No precedent available; on the other hand, some of the
constitutions, e.g., the Swiss (Article 18, paragraph 1), the Czechoslovakian
(Article 127, paragraph 1) and the Chinese (Article 20) constitutions con¬
tain provisions imposing compulsory military service on their citizens.
Sub-clause (3). Based on Congress Declaration 1933. Also on the Yugo¬
slavian Constitution, Article 23, paragraph 2.
Clause 16. Adapted from the Irish Constitution, section 44(2)1°.
Explanation 1. Based on the recommendations of the All Parties Confer¬
ence, 1928.
Explanation 111. Adapted from the Yugoslavian Constitution, Article 12,
paragraph 2. but omitting reference to military obligations.
Clause 17. Adapted from the Irish Constitution, section 44(2)5°.
The second paragraph of the clause is new.
Clause 18. Adapted from the Swiss Constitution, Article 49, paragraph 6.
Clause 19. Cf. Constitution of the U.S.A., Amendment I. Weimar Consti¬
tution Article 137, paragraph 1.
Clause 20. Based on the recommendations of the All Parties Conference,
1928. See also the Irish Constitution, section 44(2)4°.
Clause 21. Adapted from the Irish Constitution, section 44(2)6°.
Clauses 22 and 23. These clauses are meant to stop certain practices which,
it is feared, are becoming increasingly common.
Clause 24. Based on the Irish Constitution, section 42(4), and the Chinese
Constitution, Articles 21 and 160. The latter part of the clause is necessitated
by Indian conditions.
Clause 26. Cf. Article 159 of the Chinese Constitution.
Clause 27. Adapted from section 299 of the Government of India
Act 1935. See also the last clause of Amendment V of the U.S.A.
Constitution.
Clause 28 — sub-clause (/). Based on the U.S.A. Constitution, Article I,
section 9 (3); the Irish Constitution, section 15 (5), and the Weimar Consti¬
tution, Article 116.
Sub-clause (2). Based on Amendment V of the U.S.A. Constitution.
Clause 29. Based on Lauterpacht, An International Bill of the Rights
of Man, Article 1, (p. 70); also the U.S.A. Constitution, Amendments VI
and VIII.
Clause 30 — sub<lause ( 1). Adapted from the U.S.A. Constitution, Article
IV, section 1; see also Australian Constitution, section 118.
Sub-clause (2). Adapted from the Swiss Constitution, Article 61.
Clause 31. Based on the Weimar Constitution, Article 150; the Chinese
Constitution, Article 166.
11
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FRAMING OF INDIA’S CONSTITUTION
Clause 32 — sub-clause (/)• Cf. the Swiss Constitution, Article 113, para¬
graph 3.
Sub-clause (2). The High Courts have, under section 491 of the Code of
Criminal Procedure, power to issue directions in the nature erf
habeas corpus.
Sub-clause (3). Cf. the U.SA. Constitution, Article 1, section 9(2); the
Irish Constitution, section 40(4)3”.
Clause 33. Based cm the Weimar Constitution, Article 133, paragraph 2;
cf. also the Swiss Constitution, Article 66.
Clause 34. Based on the model erf Amendment XIII, section 2, of the
Constitution of the U.SA., which enables the Congress to enforce by legisla¬
tion a particular right guaranteed by the Constitution.
Clause 35. Adapted from the main clause of section 45 of the Irish Cons¬
titution.
Clause 36. Adapted from section 45(1) of the Irish Constitution.
Clause 37 — sub-clauses (i), (it) and (iii ). Adapted from the Irish Constitu¬
tion, Section 45(2), (i), (ii) and (iii).
Sub-clause (iv). Cf. the U.S.S.R. Constitution, Article 122.
Sub-clause (v). Adapted from the Irish Constitution, section
45(4)2”.
Subclause (vi). Adapted from the Constitution of Cuba, Title V, section
45, paragraph 2.
Clause 38. Adapted from Lauterpacht, An International Bill of the
Rights of Man. Article 13, (p. 72); cf. also the U.S.S.R. Constitution,
Articles 118 and 120.
Clause 39. Adapted from Lauterpacht, op. cit., Article 14, (p. 72); provi¬
sion for maternity relief for workers added.
Clause 40. Based on the Irish Constitution, section 45(2X0; the U.S.S.R.
Constitution, Article 119.
Clause 41. Cf. Section 94 of the Constitution of Canada.
Clause 42. Cf. the Swiss Constitution, Article 54, paragraph 2, and the
Weimar Constitution, Article 119, paragraph 1. The second clause is based
on Article 119, paragraph 3, of the Weimar Constitution.
Clause 43. This provision is peculiarly needed in India. For an analogous
provision, see Article 169 of the Chinese Constitution, which provides for
the education and economic advancement of the various peoples of China
in the frontier regions.
Clause 44. Taken from the recommendations of the United Nations Con¬
ference on Food and Agriculture, 1943.
Clause 45. This provision also is one dictated by the peculiar conditions
in India.
Clause 46. Adapted from the Declaration erf Havana made in 1943 by
the representatives of the governments, employers and work people of the
American continent.
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NOTE BY THE CONSTITUTIONAL ADVISER (B. N. RAU) ON THE EFFECT OF SOME OF
THB PROPOSED CLAUSES
In sending the above “Notes on Clauses”. 1 feel bound to draw attention
to the possible effect of certain provisions of the draft.
Clauses 2,11 and 27. Forty per cent, of the litigation in the Supreme Court
of the U.S.A. during the last half century has centred round the “due pro¬
cess” clause, of which it has been said that, in the last analysis, it means
just what the courts say it means. No other definition is possible. Our
draft not only borrows this clause (see clause 11) but also gives it retrospec¬
tive effect (see clause 2, which makes it applicable even to pre-constitution
laws). The result is likely to be a vast flood of litigation immediately follow¬
ing upon the new Constitution. Tenancy laws, laws to regulate money-
lending, laws to relieve debt, laws to prescribe minimum wages, laws to
prescribe maximum hours of work, etc., will all be liable to be challenged;
and not only those which may be enacted in future but also those which
have already been enacted.
A good illustration of what may happen is furnished by the U.SA. case
Louisville Joint Stock Land Bank v. Radford (1935). In this case, the
Frazier-Lemke Act passed by the Congress was held by the Supreme Court
to be unconstitutional. The Act had been passed at a time of severe agricul¬
tural depression in order to give relief to farmers by scaling down their mort¬
gage-debts and helping them to retain their farms. Declaring the law to be
invalid, the court observed: “The Fifth Amendment commands that, how¬
ever great the Nation’s need, private property shall not be thus taken even
for a wholly public use without just compensation”. It may be mentioned
that in defence of the Act the mortgager sought to establish (1) that the
welfare of the Nation demands that its farms be owned by those who work
them, (2) that to permit widespread foreclosure of farm mortgages would
result in transferring ownership to great corporations and in transforming
farm owners into farm labourers. (3) that there was great danger at the time
of the passing of the Act owing to the severe depression in agricultural prices
that the foreclosure of the farms would become widespread. The court did
not dispute any of these propositions but held in effect that they were
irrelevant, the only question being whether or not the impugned Act had
taken from the bank, without just compensation, property rights of substan¬
tial value. This question being answered in the affirmative, the Act was held
to be void. It should be noted that the Fifth Amendment of the U.S.A.
Constitution contains the “due process” clause and also another clause which
provides that private property shall not be taken for public use without just
compensation. Our draft contains both these clauses (see clauses 11 and 27).
It must be admitted that the clauses are a safeguard against predatory legis¬
lation ; but they may also stand in the way of beneficent social legislation.
The Irish Constitution has sought to steer a middle course by inserting under
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its guarantees of private property two qualifications :
43(2)1°. The State recognizes, however, that the exercise of the rights
mentioned in the foregoing provisions of this article ought, in civil society,
to be regulated by the principles of social justice.
2°. The State, accordingly, may as occasion requires delimit by law the
exercise of the said rights with a view to reconciling their exercise with
the exigencies of the common good.
If some such qualification is considered desirable in the Indian Constitu¬
tion also, we may insert a provision on the following lines between clauses 27
and 28 of the draft, numbering it as 27A for the present:
27A. The State may limit by law the rights guaranteed by sections 11,
16 and 27 whenever the exigencies of the common good so require.
The reason for the inclusion of a reference to section 16 in the above
clause will be apparent from the note under clause 16.
Clauses 7 and 8. I am not sure whether clauses 7 and 8 are enforceable
by legal action in any one of the ways specified in clause 32.
Clause 10. If this means that there is to be no search without a court’s
warrant, it may seriously affect the powers of investigation of the police.
Under the existing law, e.g., Criminal Procedure Code, section 165 (relevant
extracts given below), the police have certain important powers. Often, in
the course of investigation, a police officer gets information that stolen pro¬
perty has been secreted in a certain place. If he searches it at once, as he
can at present, there is a chance of his recovering it; but if he has to apply
for a court’s warrant, giving full details, the delay involved, under
Indian conditions of distance and lack of transport in the interior,
may be fatal.
[Search by police-officer.
165. (1) Whenever an officer in charge of a police station or a police
officer making an investigation has reasonable grounds for believing that
anything necessary for the purposes of an investigation into any offence
which he is authorized to investigate may be found in any place within
the limits of the police station of which he is in charge, or to which he
is attached, and that such thing cannot in his opinion be otherwise obtained
without undue delay, such officer may after recording in writing the grounds
of his belief and specifying in such writing, so far as possible, the thing for
which search is to be made, search or cause search to be made, for such
thing in any place within the limits of such station.
(2) A police officer proceeding under sub-section (1) shall, if practicable,
conduct the search in person.]
Clause 11. See notes on clause 2 above.
Clause 12. Under the existing law, the remedy for any electoral irregu¬
larity is by election petition and the finding of the election tribunal is final.
Under the clause as now drafted the case can be taken to the Supreme
Court. I am not sure whether this is intended.
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Clause 16. I endorse Sir Alladi Krishnaswami Ayyar’s comments on this
clause *[ ]. Clause 27A is intended to remove the difficulty pointed out.
(d) Rajkumari Amrit Kaur’s letter to B. N. Rau
April 10, 1947
In continuation of my letter of the 7th instant, I would like to put before
the committee my personal view that there may be in Part B of the funda¬
mental rights a clause to say that the carrying erf arms except for the pur¬
pose of killing anim als dangerous to life and crops shall be prohibited. I
know that mine may be a lone voice but as it is fundamental to my own
conception of a non-violent state and society I should like the same to be
recorded.
(e) Rajkumari Amrit Kaur’s letter to H. V. R. lengar
April 10, 1947
There is one point which was raised in the discussions of the Fundamental
Rights Committee to which, on second thoughts, I would like to refer now
rather than wait to bring the same up in the Minorities Committee. Mrs.
Hansa Mehta is in agreement with me. Would you, therefore, be kind
enough to include this para as Point 5 in my letter to Sir B. N. Rau which
I sent to you yesterday ? Point 5 in the original letter would then become
Point 6.
While we hope that joint electorates will be embodied in the Constitution,
there is a possibility of their not being accepted by the majority in the
unfortunate atmosphere that exists in the country today. If separate
electorates were unfortunately to be conceded even for an interim period,
we would urge that it should be the fundamental right of a voter to vote
and stand for election in a general constituency, should he elect to do
so in preference to voting in a communal electorate.
( f) K. T. Shah’s comments on the Draft Report
April 10, 1947
1. In reply to your confidential letter No. CA-21-Com-47 of the 3rd April
1947, inviting comments on the draft, I submit the following observations
on that annexure. These are apart from the notes I have reserved my right
to write.
2. While appreciating the distinction drawn between “justiciable”, and
“non-justidable” rights, I feel that owing to the very fact of making the
distinction, the latter are likely to be treated as so many pious wishes, which
*See Document No. 4 (v) (g).
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can have no very great binding effect in daily life. There are. moreover,
many so-called non-justiciable rights, which today may not admit any
judicial remedy for infringement, nor permit of immediate realization that
can be made justiciable; but if the community really so desires, this can be
easily remedied. It is all a matter of the collective conscience and the degree
of political consciousness we have attained to.
3. The right to useful work, or employment is considered non-justiciable
in some quartos today. Yet if it is guaranteed to the citizens, and. in con¬
sequence, the State is charged with a categoric obligation to provide useful
work for every citizen, able and qualified, the right can be made real and
effective. It would be necessary to prepare a comprehensive well-knit plan
for the development of all the resources of the country, so as to make them
correspond to the wants or requirements of the community as a whole
for maintaining a given standard of living for every member of the
community.
4. I do think, therefore, that some provision or arrangement should be
made to impress upon the governments of the units as well as of the Union,
that in proportion as there are fundamental rights of citizens, there will be
corresponding obligations upon the State which the latter cannot evade.
The principles included in the so-called non-justiciable rights are not mere
“directions” of policy for their general guidance; they must be regarded as
objectives of national activity, which must be the endeavour of every unit as
well as of the Union to give concrete effect to so that every citizen may
enjoy the fruits in his daily life.
5. In paragraph 3 relating to citizenship the second sentence says that
further provision governing the “accrual, acquisition, and termination” of
Union citizenship will be made by the law of the Union. I am afraid this
will not include the case of the married woman who, originally a citizen of
India, marries a non-citizen, and yet desires to retain her Indian citizenship.
The term “accrual, acquisition, and termination” will not, I submit, include
“retention”, under the circumstances mentioned above.
6. This matter has already been the subject of discussion, if not of an
international convention, under the auspices of the League erf Nations. In
times of war, particularly, married women, originally citizens of one country,
but married to those of another which may conceivably be at war with the
country erf their origin, will find their position very difficult, unless this right
to retain their native citizenship is accorded to them under the new consti¬
tution. This might be particularly important if the Union of all India does
not eventuate, as contemplated in this draft, and some parts of the country
become alien ground hereafter.
7. Article 5 sub-clause (b) provides for equality of opportunity for all
citizens as regards the holding erf public offices, acquisition and disposal of
any property, or carrying on any trade, business, etc. This is again referred
to later on in Article 14, (p. 5) where some restriction is applied in the words
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at the end, namely “subject to such reasonable restriction as the law may
impose”. I do not know how far this will go against such legislation as
restricts today the alienation of agricultural land to non-agricultural classes,
e.g„ in the Punjab or Kashmir. There is always some good reason for such
legislation in the circ umstances of the units concerned. It is worth while
considering whether a provision like that in article 5(2), which makes any
enactment etc., imposing any “disability” or making a discrimination, to
cease to have effect, even though passed before the coming into operation
of the new Constitution, would not make the units incompetent to legislate
in this way. If that be so. they would be unable to safeguard what they
consider to be of vital importance to their local economy. Provincial
autonomy would then be merely name.
8. In article 9(b) I had already stated at the meeting erf the sub-committee
that I did not agree with the limitation of the right to assemble peacefully
and without arms to the citizens only. I think it will be impossible, in
actual practice, to make a distinction when a large crowd assembles, as to
who are citizens and who are not. The provision would be, therefore, futile
in so far as it is intended not to allow this right to non-citizens. Then why
impose the limitation ?
9. Article 12(3) vests the “superintendence, direction and control” of
elections to all legislatures in an Election Commission, to be appointed
according to the law of the Union. I was not present when this matter was
discussed at the sub-committee meeting; but it seems to me that this, if
adopted, would be a serious infringement of the rights erf Provincial
Autonomy; and as such I think it ought to be either dropped, or reworded,
so as not to prejudice the rights of the Provincial Legislature to legislate on
such subjects.
10. Article 13 permits any unit to impose by law “reasonable restrictions
on the freedom of trade, commerce, and intercourse among the units...
in the interest of public order, morality or health”. I cannot see the
difference between “trade” and “commerce”. It would be as well to
make this explicit, or drop one of the two expressions which are
mutually identical.
11. Besides, this provision does not take any account of other restrictions
which may be necessary as well as reasonable for a unit to impose in the
interest of local revenues. While customs duties which become merely tran¬
sit duties may well be objected to and forbidden as between the several parts
of the Union, I do not think it would be equally proper to forbid town
duties or chungi on the articles consumed within the municipal limits of the
given town.
12. The same may also be said with regard to the customs duties proper
imposed by such of the States as maintain their own internal customs on
goods coming in or going out of their territories, and who decide to join
the Union. In many of these cases the customs receipts are an important
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item in the State revenues. To ask than to forego the whole of it at one
stroke even though the burden is borne by their own citizens, would be as
impolitic as it might be impracticable. I think, therefore, the expression
“revenues” ought to be added to the other three.
13. Comment has already been offered on Article 14.
14. Article 15. As stated at the meeting already, in the explanation given
under the clause, I would like to substitute “national or social services” in
place of “education”. If social conscription is justified and permitted for
education, I cannot see why it should not be permitted for matters relating
to the public health, or in times of other civic calamities. In a separate
note reasons have been advanced why we should include in the fundamental
rights the right to useful work or employment being guaranteed to every
citizen. In order to make good this guarantee, every unit should be
required to prepare a comprehensive plan for itself, to be integrated in an
overall National Plan which would so develop all available resources as to
provide work for every able and qualified citizen. I am afraid it would not
be possible for independent sovereign India to make up the leeway in all
these social matters that she now suffers from, unless the Constitution allows
power to conscript all available man and woman power in the country for
such purposes.
15. Article 27, guaranteeing, as it were, individual property, should, in my
opinion, be made subject to some exception in regard to those forms of
natural wealth, which, like land, mines and minerals, forests, flowing rivers
out of which hydro-electric power may be generated, or irrigation works
built; or coastal waters, in which valuable fisheries may be found. Not
only are those the basic sources of producing new wealth for the benefit of
the community as a whole, which ought to be available equally for the
fullest possible development by collective effort; but no room should be
left to any private proprietor to interpose a veto, in his own selfish interests,
upon the proper utilization of these resources.
16. Several minerals, again, found in different parts of India, are likely
to be of vital importance from the point of view of our National Defence.
The risk of their being alienated by a private proprietor seeking his own
personal profit, in favour of foreigners, whose country may conceivably be
at war with this country, is too great not to require to be fully safeguarded
against.
17. Nor should a private owner be entitled to keep these resources unde¬
veloped, if he cannot develop than himself. These are not all perennial
assets. Once exhausted a mine cannot be renewed; once denuded a forest
cannot be easily replaced. Even pearl fisheries need to be carefully
protected, as whale hunting has had to be regulated by international con¬
vention. And such protection or regulation will not be easy unless the rights
of ultimate ownership in these forms of natural wealth are reserved to the
community. We must, therefore, see to it that the fullest opportunity is
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157
provided for the utmost utilization of such sources of new wealth by collec¬
tive effort and for the common benefit. If private individual proprietors have
to be expropriated for this purpose, I would not object to reasonable com¬
pensation being given to them ; though even here it must be pointed out that
at least in the case of developed land or exploited mines, the individual
proprietor must have in many cases benefited himself several times the value
of his property; and this should be taken into account before any policy of
expropriation with compensation is adopted and given effect to.
18. Article 9, dealing with several of the primary freedoms or civil liber¬
ties, makes than subject to “public order and morality”. The last named
is a very vague tom. Its connotation changes substantially from time to
time. There have been many instances, in this as well as in other countries,
wherein, in the name of public morality, essential freedoms erf thought or
expression have been denied to citizens. The example of the bar placed by
the Lord Chamberlain in England against the staging of some of Bernard
Shaw’s plays need hardly be cited to lend point to my objection. In a land
of many religions, with differing conceptions of morality, different customs,
usages and ideals, it would be extremely difficult to get unanimity on what
constitutes morality. Champions of the established order would find much
in the new thought at any time, which might be considered by them as open
to objection on grounds of public morality. If this is not to degenerate into
a tyranny of the majority, it is necessary either to define more clearly what
is meant by the term “morality”, or to drop this exception altogether.
These remarks are offered in response to your invitation in para 4 of your
letter under reply. I hope they will be considered by the sub-committee
before the report is finalised. As for the notes I had reserved my right
to append, I am enclosing a copy of the note on the right to work, which
may please be treated separately.
I hope you will receive this in time.
(g) Alladi Krishnaswami Ayyar’s comments on the Draft Report
April 10, 14 and 15, 1947
Note dated April 10, 1947
There is one other point to which I should like to draw the attention of
the committee. From the draft, which is a result of the deliberations, some
of the rights guaranteed are subject to public order and morality. Other
rights are not even subject to that qualification. During the time of war or
a similar emergency, it may be difficult to bring these cases under public
order or morality. Besides, public order or morality in our final draft covers
only particular rights. A perusal of the Defence of India Act and the rules
thereunder will illustrate die need for the security of the State also bring
added as a further qualification to the fundamental rights. Mr. Munshi
suggested a general clause giving a suspending power to the Provincial or
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the Union Government, but that was voted against by the committee on
the ground that the fundamental right itself would be rendered illu¬
sory. Would it not therefore be better to add some such expression
as “security and defence of the State or national security” to the words
“public order”.
Note dated April 14, 1947
Clause 5. On further consideration I feel that unless the latter part begin¬
ning with “There shall be no discrimination etc., etc.,” is connected with
the former part by a conjunctive it might be open to the construction that
no sort of discrimination between even a citizen and a non-citizen can exist
in regard to such matters as the exercise of a trade, calling or profession
which is what is not intended. For example, a South African resident in this
country or a foreign company even might claim equal rights with an Indian
citizen. In this connection it is well to remember that the scheme of die
chapter relating to discrimination in the Government of India Act is how¬
ever confined to non-discrimination between British citizens and Indian
nationals. All that was intended by the majority of the committee was that
in such matters as trial before courts of law and the exercise of normal
rights as human beings there should not be any distinction between man
and man, the feeling being that in India it should take a broader view than
is taken in the recent European constitutions which confine all the
fundamental rights to citizens. I would therefore suggest to the
committee the retention of ‘and’ or make the provision clearer in
some other way.
Clause 9(a). I have the following note to submit in regard to the liberty
secured under cl. 9. Its effect on s. 153-A of the Indian Penal Code will have
to be carefully considered, though the attention of the committee was not
drawn specifically to that section. Under the clause as it stands unless the
class hatred is of the kind likely to affect public order and morality it will
not be covered by the section. If the opening words alone were there, it
might possibly cover cases under 153-A when the speech or the writing is
of a virulent character. But the specific reference to “obscene, slanderous
and libellous utterances” in cl. 9(a) might give rise to an argument that
preaching class hatred might not come under that clause. The committee
might therefore consider the inclusion in the clause of words to the following
effect:— “or calculated to promote class hatred”.
Clause (d). In regard to secrecy of correspondence I raised a point during
the discussions that it need not find a place in a chapter on fundamental rights
and that it had better be left to the protection afforded by the ordinary law
of the land contained in the various enactments. There is no such right in
the American Constitution. Such a provision finds a place only in the post-
First World War constitutions. The effect of the clauses upon the sections
of the Indian Evidence Act bearing upon privilege will have to be considered.
The Indian Evidence Act hedges in the privilege with a number of
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159
restrictions —vide chapter 9, s. 120-127. The result of this clause will be
that every private correspondence will assume the rank of a State paper, or,
in the language of s. 123 and 124, a record relating to the affairs of State.
A clause like this might checkmate the prosecution in establishing any
case of conspiracy or abetment in a criminal case and might defeat every
action fqr civil conspiracy, the plaintiff being helpless to prove the same by
(daring before the court the correspondence that passed between the parties,
which in all these cases would furnish the most material evidence. The open¬
ing words of the clause “public order and morality’’ would not be of any
avail in such cases. On a very careful consideration of the whole subject I
feel that inclusion of such a clause in the chapter on fundamental rights will
lead to endless complications and difficulties in the administration of justice.
It will be for the committee to consider whether a reconsideration of the
clause is called for in the above circumstances.
Clause 10. Unreasonable searches. In regard to this subject I pointed out
the difference between the conditions obtaining in America at the time when
the American Constitution was drafted and the conditions in India obtaining
at present after the provisions of the Criminal Procedure Code in this
behalf have been in force for nearly a century. The effect of the clause, as
it is, will be to abrogate some of the provisions of the Criminal Procedure
Code and to leave it to the Supreme Court in particular cases to decide
whether the search is reasonable or unreasonable. While I am averse to re¬
agitating the matter I think it may not be too late for the committee to
consider this particular clause.
Clause 13. Though I have been in some measure responsible for the inclu¬
sion of this clause I feel it must be made clear that: (1) goods from other parts
of India than in the units concerned coming into the units cannot escape duties
and taxes to which the goods produced in the units themselves are subject.
(2) It must also be open to the unit in an emergency to place restrictions
on the rights declared by the clause.
(3) It was not intended to extend this right to non-citizens carrying on
trade. Elsewhere in the chapter a distinction has been drawn between citizens
and non-citizens.
There is also a further point to be considered on the terms of the clause
as it stands. If for any reason ’coastal trade’ is ultimately left to the provin¬
cial jurisdiction, the units will not in any way be hampered by the right
to the freedom of trade as put in the clause. To meet this point I would
suggest that the clause might be recast either by the addition of ‘coastal
trade’ or by the omission of the words “whether by means of internal carriage
or by ocean navigation”.
To meet the other points the following amendments will have to be made
to the clause :
(1) After the proviso add : “or such restrictions as the unit may impose
on an emergency declared as such”.
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(2) Add another proviso to the effect: “provided that nothing in this
clause shall prevent any unit from imposing on goods from
other units the same duties and taxes to which goods produced in
the unit are subject”
Clause 16. On further consideration and with due regard to the innumera¬
ble acts from the beginning of Anglo-Indian history bearing upon social rights
and obligations which are inter-mixed with Hindu religion and the danger
of such legislation being upset in the peculiar conditions of this country by
force of this clause I am for some clause being inserted on the lines suggested
by the lady members of the committee.
To meet the point an explanation or proviso to the following effect may
be added : “The right to profess and practise religion shall not
preclude the legislature from enacting laws for the social betterment of
the people”.
Clause 21. On further consideration the clause as drafted seems to me to
require some slight modification. The intention as the committee might
remember was not to rule out the cypres application of the funds erf religious
bodies or institutions but merely to prevent the State from expropriating
property devoted to religious uses excepting for necessary works of public
utility and on payment of compensation. The clauses as drafted may even
prevent a court from directing a cypres application or the legislature of any
unit from passing legislation authorizing cypres application. I would there¬
fore suggest the inclusion of the words “or taken by the States” after the
word “diverted”.
Clause 32. While I do not want to re-agitate before the committee the
point I raised with regard to writs, the draft as it stands might require slight
modification. “Without prejudice to the powers that may be vested in this
behalf in other courts” might be added at the beginning of sub-clause (2).
Note dated April 15, 1947
Clause 5. On a further consideration of the first part of this clause and
the possible utilization erf the clause as it stands by non-citizens for purposes
for which it is not intended I am for the deletion of that part altogether.
Sufficient protection is afforded to non-citizens within the Union by clause
(ii). Omitting the first part the clause may read as follows: There shall
be no discrimination against any person on grounds of religion, race, caste.
or sex in regard to the use of.general public. Omit the word
“language”. The omission of the word “language” is rendered all the more
necessary because the grounds referred to are not to disqualify a citizen from
holding a public appointment. Clause (b) may be retained as it is.
* * *
The freedom of trade guaranteed to the citizens undo’ this clause shall
not in any way interfere with such Indian States as may become members of
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161
the Union from continuing to levy customs or similar dues as are being levied
under any arrangement or in the exercise of any power in that behalf until
and unless the same is transferred to or vested in the Union in pursuance
of any provision in the Constitution of the Union.
(VI) MINUTES OF DISSENT TO THE DRAFT REPORT
April 14, 1947
I
Causes 8 and 25 give the citizen the option to learn and use the national
language through the medium of either the Devanagari or the Persian script.
I regret that my colleagues on the sub-committee did not find it possible
to agree to the option being extended to the use of the Roman script as a
further alternative. While those who have received English education may
form a small part of our population, the fact remains that lakhs of Indians
are familiar with the Roman script and that those of them, particularly in the
South, who are not familiar at the same time with the Nagari or Persian
script would find it easier to learn the national language and use it if they
were able to do so through the medium of the Roman script. These consider¬
ations apply with special force to members of small minorities like the Indian
Christians, Anglo-Indians and Jews who know the Roman script alone. So
too the Indian Army has so far been successfully imparted training and
education through the medium of “Roman Urdu”, which means Hindustani
in the Roman script. That is a salutary practice which has made it possible
for mixed regiments to be taught the national language without distinction
of religion or province. If it is now to be abandoned, it will mean that our
national army will have to take cognizance of the religious grouping or
provincial origin of each of its soldiers, thus making mixed regiments
difficult to organize and to educate. I trust, therefore, that the Advisory
Committee will add the Roman script to those already specified in
clauses 8 and 25.
M. R. Masani.
H
We are against the inclusion amongst fundamental rights of those
embodied in clauses 17 and 21. It is clear that the right freely to profess
and practise religion guaranteed by clause 16 and the rights of property
guaranteed by clauses 11 and 27 amply safeguard the right of all religious
denominations to acquire and administer such property as they wish and
to build, establish and maintain places of worship, free from interference.
There does not appear to be any necessity to sanctify the property rights of
religious denominations any further by such specific recognition. We would.
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therefore, suggest that clauses 17 and 21 be eliminated as redundant and
superfluous.
Hansa Mehta,
M. R. Masani,
Amrit Kaur.
m
We are not satisfied with the acceptance of a uniform civil code as an
ultimate social objective set out in clause 41 as determined by the majority
of the sub-committee. One of the factors that has kept India back from
advancing to nationhood has been the existence of personal laws based on
religion which keep the nation divided into watertight compartments in many
aspects of life. We are of the view that a uniform civil code should be
guaranteed to the Indian people within a period of 5 or 10 years in the
same manner as the right to free and compulsory primary education has
been guaranteed by clause 24 within 10 years. We, therefore, suggest that
the Advisory Committee might transfer the clause regarding a uniform civil
code from chapter 2 to chapter 1 after making suitable modifications in it
M. R. Masani,
Hansa Mehta,
Amrit Kaur.
IV
We regret that the majority of the sub-committee turned down the propo¬
sal to include a clause based on Article 54 of the Swiss Constitution on the
following lines:
No impediments to marriage between citizens shall be based merely upon
difference of religion.
The Special Marriage Act III of 1872, which governs civil marriages
between Indians of different religious faiths, demands from both contracting
parties at present the following solemn declaration :
I do not profess the Christian, Jewish, Hindu, Muhammadan, Parsee,
Buddhist, Sikh or Jain religion.
Such an impediment to marriage between two Indians is a reflection on our
claim to common nationhood. Only as recently as February 26, 1947,
Mahatma Gandhi is repented at a prayer meeting to have supported the idea
of marriages between persons professing different religious faiths, each retain¬
ing his or her own religion without abatement. Unfortunately, such
marriages cannot be solemnized in India today. Indians who have desired
to marry a fellow-national erf another religious faith have had to leave the
borders of India in order to get married, without being forced to perjure
themselves. It is only possible, however, for those with more than average
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means and facilities to leave the country for such a purpose and the law
has actually prevented several conscientious persons of limited means who
were unwilling to comply with its requirements from marrying fellow-
nationals of their choice. The incorporation in the Constitution of the
proposed clause would render such a primitive law as at present prevails
ultra vires of the Constitution. We strongly urge that this clause be inserted
at a suitable place.
Amrit Kaur,
Hansa Mehta,
M. R. Masani.
(Vn) MINUTES OF THE MEETINGS OF THE SUB-COMMITTEE
April 14-15. 1947
April 14, 1947
Present: Acharya J. B. Kripalani, Rajkumari Amrit Kaur. Mrs. Hansa
Mehta, Dr. B. R. Ambedkar, Prof. K. T. Shah, Mr. M. R. Masani, Sardar
K. M. Panikkar, Sir Alladi Krishnaswami Ayyar, Mr. K. M. Munshi.
Consideration of the draft report of the sub-committee was taken up.
Prof. Shah pointed out that decisions on certain clauses were taken by a
majority and that the report gives no indication which of the recommenda¬
tions of the sub-committee were subject to the minutes of dissent erf the
members. He suggested that that should be clearly stated in the report. It
was agreed that the members signing the report would be taken to have
signed it subject to their minutes of dissent.
The draft clauses contained in Annexure I were taken up one by one.
Clause 1 was approved.
Clause 2. Mr. Munshi pointed out that the clause as drafted did not
conform to the decision arrived at in the committee meeting of the 29th
March. It was decided to redraft it in accordance with the minutes of that
date.
Clause 3. It was decided to omit the words “the accrual, acquisition and
termination of*.
Clause 4. Sardar Panikkar pointed out that this clause mixed up two
different points—(1) the protection of citizens outside the territories of
the Union which is a matter regulated by well-established international prac¬
tice and (2) protection within the territories of the Union. So far as this
protection referred to fundamental rights he had no objection but, as the
clause stood, it included protection in respect of other rights as well. This
he thought was objectionable as tending to infringe the powers of units.
Dr. Ambedkar referred, in this connection, to clause 8 at page 11 of his
memorandum. On the understanding that a provision on the lines of clause
8 at page 11 of his memorandum would be included in the list of Union
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powers, he agreed that clause 4 under consideration may be omitted. This
was accepted by the committee.
Clause 5(1). It was decided to transfer the first sentence of this clause
to the non-justiciable section and to redraft the next two sentences as
follows:
No person shall be denied the equal treatment of the laws within the
territories of the Union and in that regard there shall be no discrimination
on grounds of religion, race, caste, language or sex.
Clause 5(b) should be an independent clause. Sub-clause 5(2) requires
consequential redrafting as the grounds would have to be specified.
Sir Alladi Krishnaswami Ayyar referred to enactments such as the Hindu
Religious Endowments Acts which restricted certain appointments to Hindus
and said that it would be necessary to protect such provisions. He suggested
the following draft which was accepted in principle subject to drafting
amendments :
Nothing herein contained shall prevent a law being made prescribing that
the incumbent of an office appointed to manage or administer the affairs
of a religious or denominational institution shall be of a particular
persuasion or denomination.
Clause 6. After the word “untouchability ’, add the words “in any form”.
Clauses 7 and 8 were approved, the latter by a majority.
Clause 9. Sir Alladi initiated a discussion as to the necessity of imposing
limitations on fundamental rights in cases of grave emergency and when the
security of the State is endangered. It was decided that a separate clause
to this effect should be included in the chapter on fundamental rights.
Clause 10. Accepted by a majority.
Clause 11. Accepted.
Clause 12. Accepted by a majority.
Some members thought that clause 3 infringed the rights of the units in so
far as the over-riding law was to be the law of the Union. They also thought
that, in any case, the Election Commission should be appointed by the units
or the Union as the case may be.
Clause 13. The attached note by Sir Alladi Krishnaswami Ayyar was
accepted and it was decided to redraft the clause. In redrafting, which
Mr. Munshi promised to do, it was decided that provision should be made
to enable the units and the Union to enter into arrangements whereby the
existing rights to internal customs would continue for a reasonable period
of transition.
Clause 14. It was decided to transfer this as sub-clauses (e) and (0 of
clause 9 as follows:
(e) the right of every citizen to move freely throughout the Union.
(f) the right of every citizen to reside and settle in any part of the Union,
to acquire property and to follow any occupation, trade, business or
profession. Provision may be made by law to impose such reasonable
restrictions as may be necessary in public interests.
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Clause 15. Accepted. Sardar Panikkar thought that sub-clause (c) is open
to the objection that it does not take into account different types of begar.
In the explanation under this clause for the word “mischief’ use “purview”.
Clause 16 was decided to be redrafted as follows:
All persons are equally entitled to freedom of conscience, to freedom of
religious worship and to freedom to profess religion subject to public order,
morality or health and to the other provisions of this chapter.
Explanation 1. The wearing and carrying of kirpans shall be deemed to
be included in the profession of the Sikh religion.
Explanation 2. The above rights shall not include any economic, financial,
political or other secular activities that may be associated with religious
worship.
Explanation 3. No change.
Clause 17. Accepted.
Clause 18. Accepted.
Clause 19. Mr. Munshi and Sardar Panikkar promised to bring a redraft
so as to provide for those cases where religion is already accepted as a State
religion.
Note by Sir Alladi Krishnaswami Ayyar
Clause 13. Though I have been in some measure responsible for the inclu¬
sion of this clause I feel it must be made clear that (1) goods from other
parts of India than in the units concerned coming into the units cannot
escape duties and taxes to which the goods produced in the units themselves
are subject.
(2) It must also be open to the unit in an emergency to place restrictions
on the rights declared by the clause.
(3) It was not intended to extend this right to non-citizens carrying on
trade. Elsewhere in the chapter a distinction has been drawn between citizens
and non-citizens.
There is also a further point to be considered on the terms of the clause
as it stands. If for any reason ‘coastal trade’ is ultimately left to the provin¬
cial jurisdiction, the units will not in any way be hampered by the right to
the freedom of trade as put in the clause. To meet this point I would suggest
that the clause might be recast either by the addition of ‘coastal trade’ or by
the omission of the words “whether by means of internal carriage or by ocean
navigation”.
To meet the other points the following amendments will have to be made
to the clause:
(1) After the proviso add : “or such restrictions as the unit may impose
on an emergency declared as such”.
(2) Add another proviso to the effect : “provided that nothing in this clause
shall prevent any unit from imposing on goods from other units the
same duties and taxes to which goods produced in the unit are subject”.
12
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FRAMING OF INDIA’S CONSTITUTION
April 15, 1947
Present: Acharya J. B. Kripalani, Sir Alladi Krishnaswami Ayyar, Sardar
K. M. Panikkar, Dr. B. R. Ambedkar, Rajkumari A m rit Kaur, Mrs. Hansa
Mehta, Mr. K. M. Munshi, Mr. M. R. Masani.
The following decisions were reached:
Clause 20. Add the words “or to attend religious worship”.
Clause 21. This should be redrafted as follows:
Any property used for or in connection with religious worship shall not
be taken or acquired by the State save for necessary works of public
utility and on payment of just compensation.
Clause 22. For the words “converted to” substitute the words “made to
join or profess”.
Clause 23. In the third line, omit the words “or undue influence”.
Dr. Ambedkar proposed that the clause should end with the words
“recognized by law” but this was not accepted by the committee.
Clauses 24, 25 and 26 were accepted and it was decided that they should
come under a chapter entitled “Rights to Education”. Sardar Panikkar
objected to clause 25 on which he proposed to send a minute of dissent.
Clause 27. Accepted. The committee by a majority decided not to accept
the suggestion of Sir B. N. Rau to insert a clause 27(A) contained in his
note dated 8-4-47.
Clause 28. Accepted.
Clause 29. Accepted.
Clause 30. After the words “and the manner in which” add the words
“and the conditions under which”.
Clause 31. It was decided to transfer this to the non-justiciable section as
an obligation of the State.
Clause 32. Sardar Panikkar expressed the view that clause 32 read with
the other clauses imposed on the Union obligations to safeguard a variety
of fundamental rights which, in his judgment, the Union would not be in a
position to do, having regard to the size of the country and the nature of
the political stresses and strains now in existence. He suggested that there
should be two sets of justiciable fundamental rights—one, which he thought
should be small in number, to be incorporated in the Constitution at the
Union level, and the other at the units level. Sir Alladi Krishnaswami Ayyar
pointed out that it was necessary to have uniform interpretation of fundamen¬
tal rights and that it was necessary, therefore, to give to the Supreme Court
an overall jurisdiction in the matter of such interpretation. On practical
grounds he thought that there should be courts at a lower level to which
aggrieved parties could go. Dr. Ambedkar thought that all this was really
a matter to be settled at the time of considering the organization of the
Supreme Court and the lower courts. It was finally decided that sub-clauses
(4) and (2) should remain subject to the following minor modifications.
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In sub-clause (1). delete the word “also”.
In sub-clause (2), after the word “prohibition”, add the words "quo war¬
rantof.
Mr. Masani raised the question arising out of sub-clause (3), as to whether
writs other than the writ of habeas corpus may be suspended other than in
times erf rebellion, invasion or other grave emergency. Discussion on this
clause was postponed.
Clause 33. Accepted.
Clause 34. Accepted. The committee desired that office should prepare
a list of all those clauses which create offences.
Sardar Panikkar took the committee back to clause 2 and argued that
this clause automatically invalidated certain parts of existing legislation. This,
he thought, was unsound. In his opinion, invalidation should be by a deli¬
berate decision of the legislature and not by automatic operation of a clause
in the chapter on fundamental rights. After considerable discussion on this
point, the committee finally agreed to leave the clause as it stands and to
add a paragraph in the report to the Advisory Committee to the following
effect, namely, that while the sub-committee are agreed on the main principles
included among the fundamental rights, they had not had sufficient time to
examine the effect of these clauses on the mass of legislation which is now
in force.
With regard to clause 13. Mr. Munshi suggested two alternative drafts. It
was decided that these would be considered later.
Clause 5 was again discussed and it was decided to be redrafted as
follows:
There shall be no discrimination against any citizen on grounds of religion,
race, caste, language or sex. In particular there shall be no discrimination
against any person on any of the grounds aforesaid in regard to tho use
of wells, tanks, roads, schools and places of public resort maintained wholly
or partly out of public funds or dedicated to the use of the general public.
To clause 5(b) which is proposed to be re-numbered, the following should
be added:
Nothing herein contained shall prevent a law being made prescribing that
the incumbent of an office to manage, administer or superintend the affairs
of a religious or denominational institution shall be a member of a
particular religion, persuasion or denomination.
Clause 11 was decided to be redrafted as follows:
No person shall be deprived of his life, liberty or property without due
process of law nor shall any person be denied the equal treatment of the
laws within the territories of the Union provided that nothing herein
contained shall prevent the Union legislature from legislating in respect of
foreigners.
Clause 9. It was decided to insert after the words “public order and moral¬
ity” in the preamble to this clause the following words: “or to the existence
of grave emergency declared to be such by the Government of the Union
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FRAMING OF INDIA’S CONSTITUTION
or the unit concerned whereby the security of the Union or the unit as the
case may be is threatened”.
In clause 32(3) for the words “the writ of habeas corpus?’ use the words
“these writs”. Sir Alladi Krishnaswami Ayyar was opposed to this amend¬
ment on the ground that the writ of habeas corpus is a high privilege writ
and should not be put in the same level as the other writs.
It was decided that Chapter II should be entitled “Fundamental principles
of governance” and that Chapter I should be entitled “Fundamental Rights”.
Cause 35 was redrafted as follows :
The principles of policy set forth in this chapter are intended for the
guidance of the State. While these principles shall not be cognizable by
any court, they are nevertheless fundamental in the governance of the country
and their application in the making of laws shall be the duty of the State.
Clause 36. Accepted.
Clause 37. Insert as first sub-clause (re-numbering the other clauses con¬
sequentially), the following: “All persons shall be equal before the law”.
In sub-clause (iii), omit the words “so to develop as”.
Clauses 38-41. Accepted.
Clause 42. It was decided to omit the last sentence of this clause.
Clauses 43-45. Accepted.
Clause 46. It was decided to omit the words “by the elimination of war
as an instrument of national policy”.
The office note regarding previous authorization was considered and it
was decided by a majority that a clause should be inserted in the Constitu¬
tion regulating the extent to which previous authorization is necessary in
suits against Government.
Dr. Ambedkar referred to the last sentence of the minutes of the meeting
held on the 30th March and said that he had hoped to bring forward a draft
clause, in consultation with Sir B. N. Rau, in regard to administrative dis¬
crimination and the remedies to be provided short of an application to the
Supreme Court. Unfortunately, in view of Sir B. N. Rau’s absence, he bad
not been able to do so. The committee decided by a majority that this was
a matter which should be first discussed by the Minorities Sub-Committee
who may, if necessary, refer it back to the Fundamental Rights Sub-
Committee.
Dr. Ambedkar read clause 4, at pages 14-16 of his memorandum. The
Chairman ruled that this clause was outside the purview of the Fundamental
Rights Sub-Committee.
Mrs. Hansa Mehta moved the following clause: “No impediment to
marriage between citizens shall be based merely on grounds of religion”.
The decision of the majority was against the insertion of this clause.
Rajkumari Amrit Kaur raised the question referred to in her letter dated
the 10th April addressed to Sir B. N. Rau on the subject of carrying of arms.
The committee voted against her proposal.
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Cause 19 was re-considered and was decided to be omitted.
Sardar Panikkar promised to place before the committee tomorrow a clause
dealing with internal customs duties.
A draft report in the accompanying form was adopted.
(Vffl) REPORT OF THE SUB-COMMITTEE ON FUNDAMENTAL RIGHTS
April 16, 1947
To
The Chairman,
Advisory Committee on Minorities, Fundamental Rights etc.
Sir,
We, the undersigned, members of the Sub-Committee on Fundamental
Rights appointed by the Advisory Committee on the 27th February 1947
have considered the matter referred to us and have now the honour to submit
this our report.
2. The committee held three sittings. At the first sitting which was on
the 27th February 1947 the procedure to be adopted and the general lines
of business were discussed and settled. The second sitting of the committee
was for a continuous period of eight days. During this sitting, after a full
discussion of the various drafts placed before the committee, conclusions
were reached in regard to the different clauses which embodied in most cases
the decision of the majority of the members present and in other cases their
unanimous decision. The third sitting was held between 14-4-47 and 16-4-47
in which the provisions embodying the conclusions readied in the previous
sitting were discussed and revised.
3. When the committee began its work, it was resolved that a difference
should be drawn in the list of fundamental rights between rights which are
enforceable by appropriate legal process and provisions which are in the
nature of fundamental principles of the social policy that is to regulate the
governments concerned. In this respect, the committee has followed the
Irish model and adopted a middle course between the one adopted by the
framers of the American Constitution and the one pursued in recent European
constitutions which have mixed up the two sets of rights. The committee
also were of opinion that while certain human rights must be guaranteed
to every resident of the Union, other rights must be confined only to citizens
and accordingly it will be noticed that some clauses refer to every person and
other clauses to citizens only.
4. While the committee has drawn upon the American and Irish Consti¬
tutions as also upon the recent European constitutions, the committee has
throughout kept in view the complexity of Indian conditions and the peculiar¬
ities of the Indian situation and has made appropriate changes. In certain
cases, provision has been made for penalties and sanctions being enacted by
the law of the Union for violating the fundamental rights. This is of course
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FRAMING OF INDIA’S CONSTITUTION
without prejudice to the provision which makes any law in contravention
of the fundamental rights invalid or inoperative. A general provision has
also been inserted for the enforcement of the rights by appropriate remedies
before the Supreme Court to be established as a part of the Union consti¬
tution. The detailed provisions in regard to the enforcement of fundamental
rights by appropriate writs and applications before the Supreme Court to be
established as a part of the federal structure of the constitution will
necessarily have to find a place in the powers and jurisdiction of the
court to be so established as also in other provisions relating to the
Union constitution.
5. Though clause 20 of the Statement of May 16, 1946 contemplates the
possibility of distributing fundamental rights between the constitutions of
the Union, groups, if any, and the units, we are of the opinion that funda¬
mental rights of the citizens of the Union would have no value if they differ
from group to group or from unit to unit or are not uniformly enforceable.
Rights of man enforced uniformly have come to be recognized as an essen¬
tial condition of stable society. We recommend that provisions on the lines
set out in the Annexure be incorporated in the new Constitution so as to be
binding upon all authorities, whether of the Union or the units.
6. We are of the opinion that every citizen is entitled to free trade, com¬
merce and intercourse within the territories of the Union unburdened by any
internal duties or taxes of customs. At the same time, we realize that many
Indian States depend upon such duties and taxes for a considerable part of
their revenue and cannot do without it all at once. Similar difficulties have
arisen in the framing of the constitutions of other countries and unless there
is a scheme for a smooth transition to free trade in the Union friction will
inevitably arise. Some agreement will therefore have to be made with those
States in the light of their existing rights with a view to their ultimate elimi¬
nation within a period to be prescribed by the Constitution. Thereafter,
there will be untramelled free trade within the Union.
7. The committee was of the opinion that the right of the citizen to have
redress against the State in a court of law should not be fettered by undue
restrictions. The committee however was not able to draft a suitable formula
as the matter required more investigation than has been possible in the time
at its disposal.
8. A proposal was made that a clause should be inserted to afford protec¬
tion against discrimination against citizens mainly by Government officers
in public administration on the ground of race or creed or social status. The
committee decided by a majority that this was a matter which should be
further discussed by the Minorities Sub-Committee who may, if necessary,
refer back to this committee.
9. In regard to any particular matters in which individual members have
not agreed with the majority view, they have appended a note erf dissent
10. While we are agreed (subject to the minutes of dissent) on the main
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171
principle of the clauses we have recommended, we have not had time to
examine in any detail the effect of these clauses on the mass of existing
legislation.
11. Sardar Panikkar was nominated on 10-4-47 and joined our delibera¬
tions only on the 14th April We had however the benefit of discussing the
whole draft with him.
Signed on behalf of the committee.
J. B. Kripalani,
Chairman ,
Fundamental Rights Sub-Committee.
ANNEXURE
FUNDAMENTAL RIGHTS
Definitions
1. Unless the context otherwise requires :
(i) ‘The State” includes the legislatures and the governments of the Union
and the units and all local or other authorities within the territories of
the Union.
(ii) ‘The Union” means the Union of India.
(iii) “The law of the Union” includes any law made by the Union legislature
and any existing Indian law as in force within the Union or any part
thereof.
Part /
Application of laws
2. All existing laws or usages in force within the territories of the Union
inconsistent with the rights guaranteed under this Constitution shall stand abrogated
to the extent of such inconsistency, nor shall the Union or any unit make any
law taking away or abridging any such right
Citizenship
3. Every person bom or naturalized in the Union and subject to the jurisdiction
thereof shall be a citizen of the Union. Further provisions governing Union
citizenship may be made by the law of the Union.
Right to equality
4. There shall be no discrimination against any citizen on grounds of religion,
race, caste, language or sex. In particular, there shall be no discrimination against
any person on any of the grounds aforesaid in regard to the use of wells, tanks,
roads, schools and places of public resort maintained wholly or partly out of
public funds or dedicated to the use of the general public.
5. There shall be equality of opportunity for all citizens :
(i) in matters of public employment;
(ii) in the exercise or carrying on of any occupation, trade, business or
profession; and no citizen shall on any of the grounds mentioned in the preceding
section be ineligible for public office or be prohibited from acquiring, holding
or disposing of property on exercising or carrying on any occupation, trade, business
or profession within the Union.
Nothing herein contained shall prevent a law being made prescribing that the
incumbent of an office to manage, administer or superintend the affairs of a
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FRAMING OF INDIA'S CONSTITUTION
religious or denominational institution shall be a member of a particular religion,
persuasion or denomination.
6. Any enactment, regulation, judgment, order, custom or interpretation of law,
in force immediately before the commencement of this Constitution, by which any
penalty, disadvantage or disability is imposed upon or any discrimination is made
against any citizen on any of the grounds mentioned in section 4 shall cease to
have effect
7. “Untouchability” in any form is abolished and the practice thereof shall be
an offence.
8. No titles except those denoting an office or a profession shall be conferred
by the Union.
No citizen of the Union and no person holding any office of profit or trust
under the State shall, without the consent of the Union, accept any present
emolument, office or title of any kind from any foreign State.
National Language
9. Hindustani, written either in the Devanagari or the Persian script at the
option of the citizen, shall, as the national language, be the first official language
of the Union. English shall be the second official language for such period as
the Union may by law determine. All official records of the Union shall be kept
in Hindustani in both the scripts and also in English until the Union by law
otherwise provides.
Rights to freedom
10. There shall be liberty for the exercise of the following rights subject to
public order and morality or to the existence of grave emergency declared to be
such by the Government of the Union or the unit concerned whereby the security
of the Union or the unit, as the case may be, is threatened :
(a) The right of every citizen to freedom of speech and expression.
The publication or utterance of seditious, obscene, slanderous, libellous or
defamatory matter shall be actionable or punishable in accordance with law.
(b) The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are
likely to cause a breach of the peace or are a danger or nuisance to the
general public or to prevent or control meetings in the vicinity of any
chamber of legislature.
(c) The right of the citizens to form associations or unions.
Provision may be made by law to regulate and control in public interest
the exercise of the foregoing right provided that no such provision shall
contain any political, religious or class discrimination.
(d) The right of every citizen to the secrecy of his correspondence.
Provision may be made by law to regulate the interception or detention
of articles and messages in course of transmission by post, telegraph or
otherwise on the occurrence of any public emergency or in the interests
of public safety or tranquillity.
(e) The right of every citizen to move freely throughout the Union.
(f) The right of every citizen to reside and settle in any part of the Union,
to acquire property and to follow any occupation, trade, business or
profession. Provision may be made by law to impose such reasonable
restrictions as may be necessary in public interests.
11. The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated and no
warrants shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
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12. No person shall be deprived of his life, liberty or property without due
process of law nor shall any person be denied the equal treatment of the laws
within the territories of the Union :
Provided that nothing herein contained shall prevent the Union Legislature from
legislating in respect of foreigners.
13. (1) Every citizen not below 21 years of age shall have the right to vote at
any election to the Legislature of the Union and of any unit thereof, or, where the
Legislature is bicameral, to the lower chamber of the Legislature, subject to such
disqualifications on the ground of mental incapacity, corrupt practice or crime as
may be imposed, and subject to such qualifications relating to residence within the
appropriate constituency, as may be required, by or under the law.
(2) The law shall provide for free and secret voting and for periodical elections
to the Legislature.
(3) The superintendence, direction and control of all elections to the Legislature
whether of the Union or of a unit, including the appointment of Election Tribunals,
shall be vested in an Election Commission for the Union or the unit as the case
may be, appointed, in all cases, in accordance with the law of the Union.
14. (1) Subject to regulation by the law of the Union trade, commerce, and
intercourse among the units by and between the citizens shall be free :
Provided that any unit may by law impose reasonable restrictions in the interest of
public order, morality or health or in an emergency :
Provided that nothing in this section shall prevent any unit from imposing on
goods imported from other units the same duties and taxes to which the goods
produced in the unit are subject :
Provided further that no preference shall be given by any regulation of commerce
or revenue by a unit to one unit over another.
[N.B.—A proviso will have to be added to meet the difficulty pointed out in para
6 of our report]
(2) Trade, commerce or intercourse within the territories of the Union by or with
any person other than the citizens shall be regulated and controlled by the law of the
Union.
15. (1) (a) Slavery,
(b) traffic in human beings,
(c) the form of forced labour as began
(d) any form of involuntary servitude except as a punishment for crime whereof
the party shall have been duly convicted,
are hereby prohibited and any contravention of this prohibition shall be an
offence.
Explanation
Compulsory service under any general scheme of education does not fall within
the purview of this clause.
(2) Conscription for military service or training, or for any work in aid of
military operation is hereby prohibited.
(3) No person shall engage any child below the age of 14 years to work in any
mine or factory or any hazardous employment
Rights relating to religion
16. All persons are equally entitled to freedom of conscience, to freedom of
religious worship and to freedom to profess religion subject to public order, morality
or health and to the other provisions of this chapter.
Explanation 1
The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
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Explanation II
The above rights shall not include any economic, financial, political or other
secular activities that may be associated with religious worship.
Explanation III
No person shall refuse the performance of civil obligations or duties on the
ground that his religion so requires.
17. Every religious denomination shall have the right to manage its own affairs
in matters of religion and to own, acquire and administer property, movable and
immovable, and to establish and maintain institutions for religious or charitable
purposes consistently with the provisions of this chapter.
The right to build places of worship in any place shall not be denied except
for reasonable cause.
18. No person may be compelled to pay taxes the proceeds of which are specifically
appropriated to religious purposes.
19. No person attending any school maintained or receiving aid out of public
funds shall be compelled to take part in the religious instruction that may be given in
the school or to attend religious worship held in the school or in premises attached
thereto.
20. Any property used for or in connection with religious worship shall not be
taken or acquired by the State, save for necessary works of public utility and on
payment of just compensation.
21. No person under the age of 18 shall be made to join or profess any religion
other than the one in which he was bom or be initiated into any religious order
involving a loss of civil status.
22. Conversion from one religion to another brought about by coercion or undue
influence shall not be recognized by law and the exercise of such coercion shall be
an offence.
Rights to education
23. Every citizen is entitled as of right to free primary education and it shall
be the duty of the State to provide within a period of 10 years from the commence¬
ment of this Constitution for free and compulsory primary education for all children
until they complete the age of 14 years.
24. Every citizen is entitled, as part of his right to free primary education, to
have facilities provided for learning the national language either in the Devanagari
or the Persian script at his option.
25. Equal opportunities of education shall be open to all citizens :
Provided that nothing herein contained shall preclude the State from providing
special facilities for educationally backward sections of the population.
Miscellaneous rights
26. No property, movable or immovable, of any person or corporation, including
any interest in any commercial or industrial undertaking, shall be taken or acquired
for public use unless the law provides for the payment of just compensation for
the property taken or acquired and specifies the principles on which and the manner
in which the compensation is to be determined.
27. (1) No person shall be convicted of crime except for violation of a law in
force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that applicable at the time of the commission
of the offence.
(2) No person shall be tried for the same offence more than once nor be compelled
in any criminal case to be a witness against himself.
28. No person shall be subjected to prolonged detention preceding trial, to
excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment.
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29. (1) Full faith and credit shall be given throughout the territories of the
Union to the public acts, records and judicial proceedings of the Union and every
unit thereof, and the manner in which and the conditions under which such acts,
records and proceedings shall be proved and the effect thereof determined shall be
prescribed by the law of the Union.
(2) Final civil judgments delivered in any unit shall be executed throughout
the Union subject to such conditions as may be imposed by the law of the
Union.
Right to constitutional remedies
30. (1) The right to move the Supreme Court for the enforcement of any of
the rights guaranteed by this part is hereby guaranteed.
(2) For the purpose of enforcing any such rights, the Supreme Court shall have
power to issue directions in the nature of the writs of habeas corpus, mandamus,
prohibition, quo warranto and certiorari.
(3) The privilege of these writs shall not be suspended unless when, in cases
of rebellion or invasion, or other grave emergency, the public safety may
require it
31. The Union Legislature may by law determine to what extent any of the
rights guaranteed by this part shall be restricted or abrogated for the members of
the armed forces or forces charged with the maintenance of public order so as to
ensure fulfilment of their duties and the maintenance of discipline.
32. The Union Legislature shall make laws to give effect to those provisions
of this part which require such legislation and to prescribe punishments for
those acts which are declared to be offences in this part and are not already
punishable.
Part II
33. The principles of policy set forth in this part are intended for the guidance
of the State. While these principles shall not be cognizable by any court, they are
nevertheless fundamental in the governance of the country and their application in
the making of laws shall be the duty of the State.
34. The State shall strive to promote the welfare of the whole people by securing
and protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.
35. The State shall, in particular, direct its policy towards securing—
(i) that all persons shall be equal before the law;
(ii) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(iii) that the ownership and control of the material resources of the community
are so distributed as best to subserve the common good;
(iv) that the operation of free competition shall not be allowed to result in the
concentration of the ownership and control of essential commodities in a
few individuals to the common detriment;
(v) that there shall be equal pay for equal work for both men and women;
(vi) that the strength and health of workers, men and women, and the tender
age of children shall not be abused and that citizens shall not be
forced by economic necessity to enter avocations unsuited to their age and
strength;
(vii) that childhood and youth are protected against exploitation and against
moral and material abandonment
36. The State shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education and to public
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assistance in case of unemployment, old age, sickness, disablement, and other cases
of undeserved want
37. The State shall make provision for securing just and humane conditions of
work and for maternity relief for workers.
38. The State shall endeavour to secure by suitable legislation, economic organi¬
zation and in other ways, to all workers, industrial or otherwise, work, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure
and social and cultural opportunities.
39. The State shall endeavour to secure for the citizens a uniform civil code.
40. The State shall endeavour to secure that marriage shall be based only on the
mutual consent of both sexes and shall be maintained through mutual co-operation,
with the equal rights of husband and wife as a basis.
41. The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled
Castes and the aboriginal tribes and shall protect them from social injustice and all
forms of exploitation.
42. The State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among its primary
duties.
43. It shall be the obligation of the State to protect every monument or place
or object of artistic or historic interest, declared by the law of the Union to be
of national importance, from spoliation, destruction, removal, disposal or export, as
the case may be, and to preserve and maintain according to the law of the
Union all such monuments or places or objects.
44. The State shall promote internal peace and security by the elimination of
every cause of communal discord.
45. The State shall promote international peace and security by the prescription
of open, just and honourable relations between nations, by the firm establishment
of the understandings of international law as the actual rule of conduct among
governments and by the maintenance of justice and the scrupulous respect for
treaty obligations in the dealings of organized people with one another.
(ix) MINUTES OF DISSENT TO THE REPORT
April 17-20, 1947
I
Clauses 9 and 24 give the citizen the option to learn and use the national
language through the medium of either the Devanagari or the Persian script.
We regret that our colleagues on the sub-committee did not find it possible
to agree to the option being extended to the use of the Roman script as a
further alternative. While those who have received English education may
form a small part of our population, the fact remains that lakhs of Indians
are familiar with the Roman script and that those of them, particularly in the
South, who are not familiar at the same time with the Nagari or Persian
script would find it easier to learn the national language and use it if they
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were able to do so through the medium of the Roman script. These con¬
siderations apply with special force to members of small minorities like the
Indian Christians, Anglo-Indians and Jews who know the Roman script
alone. So too the Indian Army has so far been successfully imparted train¬
ing and education through the medium of “Roman Urdu”, which means
Hindustani in the Roman script. That is a salutary practice which has made
it possible for mixed regiments to be taught the national language without
distinction of religion or province. If it is now to be abandoned, it will mean
that our national army will have to take cognizance of the religious group¬
ing or provincial origin of each of its soldiers, thus making mixed regiments
difficult to organize and to educate. We trust, therefore, that the Advisory
Committee will add the Roman script to those already specified in clauses 9
and 24.
M. R. Masani,
Hansa Mehta.
n
We are not satisfied with the acceptance of a uniform civil code as an
ultimate social objective set out in clause 39 as determined by the majority
of the sub-committee. One of the factors that has kept India back from
advancing to nationhood has been the existence of personal laws based on
religion which keep the nation divided into watertight compartments in many
aspects of life. We are erf the view that a uniform civil code should be
guaranteed to the Indian people within a period of 5 or 10 years in the same
manner as the right to free and compulsory primary education has been
guaranteed by clause 23 within 10 years. We, therefore, suggest that the
Advisory Committee might transfer the clause regarding a uniform civil code
from Part II to Part I after making suitable modifications in it.
M. R. Masani,
Hansa Mehta,
Amrit Kaur.
m
We regret that though the sub-committee was almost evenly divided on
it, the majority of the sub-committee turned down the proposal to include
a clause based on Article 54 of the Swiss Constitution on the following
lines :
No impediments to marriage between citizens shall be based merely upon
difference of religion.
The Special Marriage Act III of 1872, which governs civil marriages
between Indians of different religious faiths, demands from both contracting
parties at present the following solemn declaration:
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I do not profess the Christian, Jewish, Hindu, Muhammadan, Parsi,
Buddhist, Sikh or Jain religion.
Such an impediment to marriage between two Indians is a reflection on
our claim to common nationhood. Only as recently as February 26, 1947.
Mahatma Gandhi is reported at a prayer meeting to have supported the
idea of marriages between persons professing different religious faiths, each
retaining his or her own religion without abatement Unfortunately, such
marriages cannot be solemnized in India today. Indians who have desired
to marry a fellow national of another religious faith have had to leave the
borders of India in order to get married without being forced to perjure
themselves. It is only possible, however, for those with more than average
means and facilities to leave the country for such a purpose and the law
has actually prevented several conscientious persons of limited means who
were unwilling to comply with its requirements from marrying fellow
nationals of their choice. The incorporation in the Constitution of the pro¬
posed clause would render such a primitive restriction as at present prevails
ultra vires of the Constitution. We strongly urge that this clause be inserted
at a suitable place in Part I.
Amrit Kaur,
Hansa Mehta,
M. R. Masani.
IV
During the discussions we recorded our vote against compulsory service
in any form and adhere to this position. We are, therefore, not in favour
of the “explanation” as given under clause 15.
We look upon compulsion as against all tenets of democracy and would point
to the danger of giving to the State powers of compulsion in any sphere of life.
We would instead suggest the creation of paid social service in both the
Centre and the units for the spread of education and other nation-building
activities.
In a country where there is no lack of man power compulsion is particu¬
larly out of place.
Amrit Kaur,
Hansa Mehta.
V
1. Clause 35(i) should be a justiciable right as it is a fundamental principle
of jurisprudence in a democratic constitution.
2. I desire the deletion of clause 15(2) as the provision might prove highly
dangerous to national existence in a world crisis.
K. M. Munshi.
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VI
While I realise that the decisions reached by the committee are the result
of a very full discussion in which every view point was considered under the
wise guidance of the chairman of the sub-committee and while I am deeply
grateful to the committee for adopting quite a good number of suggestions
I made from time to time, I feel, in regard to a few of the decisions reached,
that they do not take sufficient note of the existing Indian law in force during
a considerable period of Anglo-Indian history and the working of judicial
institutions in this country. I therefore feel compelled to record my dissent
in regard to a few of the conclusions reached and to suggest appropriate
amendments.
Clause 10(d)—Secrecy oj correspondence
There is no right in the American Constitution. Such a provision
finds place only in the post First World War constitutions. The clause
as drafted might seriously affect the provisions of the Indian Evidence
Act which has been in force from the year 1872. That Act hedges in
the privilege with a number of restrictions —vide Chapter 9, ss. 120-127.
The result of this clause will be that every private correspondence will
assume the rank of a State paper, or, in the language of sections 123
and 124, a record relating to the affairs of the State. A clause like this
might checkmate the prosecution in establishing any case of conspiracy
or abetment in a criminal case and might defeat every action for civil
conspiracy, the plaintiff being helpless as he would be unable to prove
the same by placing before the court the correspondence that passed
between the parties, which in all these cases would furnish the most
material evidence. The opening words of the clause “public order and
morality” would not be of any avail in such cases. On a very careful
consideration of the whole subject, I feel that the inclusion of such a
clause in the chapter on fundamental rights may lead to endless compli¬
cations and difficulties in the administration of justice. The existing law
and the Indian Post Office Act which I have no reason to believe will
be altered by the future legislatures in India are more than adequate
for the purpose and there is no reason for inserting a constitutional
guarantee.
Clause 11—Unreasonable searches, etc.
This clause is borrowed from Amendment IV erf the American Con¬
stitution. There is a considerable difference between the conditions obtain¬
ing in America at the time when the American Constitution was drafted
and the conditions in India obtaining at present after the provisions
of successive Criminal Procedure Codes have been in force for quite
a long period. I would also refer in this connection to the note which
the Constitutional Adviser was kind enough to furnish to the
committee:
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Under the existing law e.g.. Criminal Procedure Code, section 165, the
relevant extracts of which are given below, the police have certain important
powers. Often, in the course of investigation, a police officer gets informa¬
tion that stolen property has been secreted in a certain place. If he
searches it at once, as he can at present, there is a chance of his recovering
it; but if he has to apply for court’s warrant giving full details, the
delay involved, under Indian conditions of distance and lack of transport
in the interior, may be fatal.
[165. (1) Whenever an officer in charge of a police station or a police
officer making an investigation has reasonable grounds for believing
that anything necessary for the purposes of an investigation into any
offence which he is authorized to investigate may be found in any place
within the limits of the police station, of which he is in charge, or to
which he is attached, and that such thing cannot in his opinion be other¬
wise obtained without undue delay, such officer may, after recording in
writing the grounds of his belief and specifying in such writing, so
far as possible, the thing for which search, or cause search to be
made, for such thing in any place within the limits of such
station.
(2) A police officer proceeding under sub-section (1) shall, if practicable,
conduct the search in person.]
In the circumstances, I am for the deletion of this clause as one of the
fundamental rights.
Clause 15(2)—Conscription
In this connection, while one may be in wholehearted sympathy with
the creed and practice of non-violence, and while it may be the avowed
policy of the Indian Union to promote international peace, it cannot be
gainsaid that war may be forced upon India much against her will and
in sheer self-defence she might have to raise an army appropriate to the
occasion. It is one thing not to have recourse to conscription as a matter
of policy; it is quite another thing for a nation or a State to deny to
herself the power to conscript if and when the occasion arises. It has
to be remembered that the security of the State is the bedrock on which
all fundamental rights rest and the State cannot by anticipation deprive
itself of every means in its power to secure that end. The State exists
for all and not for any particular class of citizens wedded to any parti¬
cular creed or persuasion.
The question was considered by the American Supreme Court whether
the clause prohibiting every form of slavery and servitude in the 8th
Amendment of the American Constitution stood in the way of conscrip¬
tion being introduced by the Congress. The Supreme Court in 1918, 245
U. S. 366 at 390 Selective Draft Law Cases, held that the Amendment
can bear no such construction and in the exercise of its war-power Congress
can impose conscription. In the words of Chief Justice White :
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We are unable to conceive upon what theory the exaction by Government
from the citizens of the performance of the supreme and noble duty of
contributing to the defence of the rights and honour of the nation as a
result of a war declared by the great representative body of the people
can be the imposition of involuntary servitude in violation of the prohibi¬
tion of the 8th Amendment. We are constrained to the conclusion that
the contention to that effect is refuted by its mere statement
In the course of their judgment, they rely upon the discussion of the
subject in Vattel’s Law of Nations and the conscription law of almost if
not all of the European States after the First World War.
I would, therefore, suggest the deletion of clause 15(2).
Clause 28—Excessive bail, etc.
While no exception can be taken to the principle of excessive bail not
being exacted or to inhuman and cruel punishment being ruled out. I
doubt very much whether it need find a place in the list of fundamental
rights. Is the question 'Whether a bail is excessive or not?’ to be fought
out as a constitutional question, right up to the Supreme Court?
There is a certain element of vagueness in the expression 'inhuman
or cruel punishment’ though in popular parlance there may be no difficulty
in understanding it. Some countries take the view that whipping should
be ruled out as a punishment altogether; some solitary confinement and
so on. This provision would necessitate the courts right up to the Supreme
Court, canvassing the different provisions of the Penal Code and various
other miscellaneous enactments to find out whether the several punish¬
ments prescribed therein are inhuman or cruel. Is it not better to leave
it to the civilized conscience of the people and to the appropriate legisla¬
tures to make suitable changes in the law from time to time? I am,
therefore, for the deletion of this clause from the list of fundamental
rights.
Clause 30
In regard to the remedies provided for the enforcement of the rights
guaranteed under the Constitution, while I am wholeheartedly in support
of the principle that any fundamental right guaranteed under the consti¬
tution must have the appropriate sanction and as speedy a remedy as
possible, I am against reproducing the complicated writ-procedure in Lidia
and I would substitute a simple remedy by application which is easily
understood by the average citizen. Even in England, the writ-procedure
has been recently abolished by the Administration of Justice (Miscellaneous
Provisions) Act, 1938 and as far as quo warranto is concerned, it has been
completely abolished. Apart from the question whether the proper procedure
is by writ or by application, having regard to the varying nature erf the
rights embodied in clauses 1 to 29, an omnibus clause like 30(1) would
be inappropriate for the purpose. The result of the clause would
be that the Supreme Court will be flooded with applications of all sorts
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covering various matters. The jurisdiction of the Supreme Court may, in
certain cases, have to be original and in other conceivable cases revisional
or appellate. The right to the freedom of the person may stand on a differ¬
ent footing and one need not have any objection to an application in
the nature of habeas corpus being provided for even in the chapter on
fundamental rights as has been done in the Irish Constitution. In regard
to other rights, while I concede that appropriate remedies must be pro¬
vided for in the constitution, clause 30 as it stands is not the appropriate
method of providing for the same. For these reasons, I would urge in
the first instance for the substitution of the following clause which I
placed for the consideration of the sub-committee and which the majority
of those present did not accept, for clause 30:
On a complaint being made by or on behalf of any person that he is
being unlawfully detained, the High Courts in the several Provinces or
States and the Supreme Court shall forthwith enquire into the same and
may make an order requiring the person in whose custody such person
is detained to produce the body of the person so detained before such
court without delay and to certify in writing as to the cause of detention,
and such court shall, thereupon, order the release of such person unless
satisfied that he is being detained in accordance with law.
If for any reason the above amendment is not accepted, I would in
Ihe alternative urge for the deletion of clause 30(1) and substitution of
the following clause for 30(2) :
For the purpose of enforcing the rights enumerated in clauses 1 to 29
supra, the Supreme Court shall have the power to issue directions in the
nature of the writs of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, appropriate to the right sought to be enforced.
The varying nature of the rights makes a general clause of the kind inserted
in 30(2) inappropriate.
Even if clause 30(1) and (2) are decided to be retained in their present
form or in any substituted form, a qualification may be added to clause
30 to the following effect: “Without prejudice to the powers that may be
vested in this behalf in other courts.”
I realise that on the terms of clause 30 any jurisdiction which may be
vested in other courts may not be affected but it is a possible construc¬
tion that the jurisdiction of the Supreme Court is sole and exclusive under
the toms of that clause on the principle that where a right is conferred
by a statute and a remedy is provided therein, that remedy must be taken
to be the sole remedy. In a vast country like India, it has to be con¬
cluded that the guardian of the liberties of the subject in the first instance
must be the provincial or local courts though there may be the necessity
to invest an appellate or revisional jurisdiction in the Supreme Court that
will have to be established as a part of the constitutional structure.
Alladi Krishnaswami Ayyar.
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VII
Clause 35(i) should be a justiciable right.
Jairamdas Daulatram
VUI
National Language
Clause 9 as it stands makes Hindustani the language of the Union. In
view of the terminology adopted by the committee it is clear that Hindus¬
tani shall not be the language of the units. I am of the opinion that
Hindustani shall be the language of the State i.e„ of the Union as well
of the units. If each unit is given liberty as the clause does to make
any language an official language not only the object of having a national
language for India will be defeated but linguistic diversity will make
Indian administration impossible. I therefore am of opinion that for the
word ‘Union’ the word ‘State’ should be substituted. It may be that the
units may require time to make Hindustani their official language. There
is no harm in giving them such time. But there cannot be any doubt
upon the issue that the units shall be put under an obligation to adopt
Hindustani as an official language at the very start.
2. There is a great danger of the Hindustani language becoming
sanskritized by Hindu writers and arabicized by M uslim writers. If this
happens Hindustani will cease to be a national language and will become
a sectional language. Without a National Academy the Hindustani language
will not be able to overcome this danger. It is therefore necessary for
the Constitution to make provision for the establishment of National
Academy on the model erf the French National Academy.
Compulsory Service
Para (2) of explanation to clause 15 should be deleted. No country
however peaceful and non-violent in its intention or philosophy can escape
the necessity for compulsory military service for defending itself and its
liberty when attacked by another nation. The fact must be faced that
there are so many nations which are neither peaceful nor non-violent. Ban
cm compulsory military service by a nation living in the midst of hostile
nations bee to impose compulsory military service is nothing but wilful
self-immolation which is contrary to wisdom and morally quite heinous.
B. R. Ambedkar.
IX
I—General
It was only at a late stage, after the report on fundamental rights had
been drafted and the proposals formulated, that I was enabled to take
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part in the discussions of the committee. As it would be impracticable
to reopen every clause that had been fully discussed and decided upon,
I have thought it best to submit my views on the general questions in
the form of a note covering the entire field of the proposals under
discussion.
1 acknowledge with gratitude that on a number of important points
raised by me the committee was good enough to hear my views and
meet my point of view either by the omission of certain clauses or by
redrafting them in the light of what I submitted. The present note, how¬
ever, deals with more fundamental issues.
I recognize that in the case of a country like India the constitution
should provide certain essential safeguards, and certain rights which can¬
not be lightly overridden either by the legislature or by the executive. If
these provisions are to be effective, they should be few and limited to
such rights as are accepted by the people at large. Fundamental rights
cannot be imposed on a people; they must have validity in the political
convictions of the vast mass of thinking people and should be of a nature
which does not arise from the fleeting fashions of the moment. No con¬
stitution can perpetuate and enshrine as a dogma what is a temporary
phase of opinion in any country; nor can permanent provisions be included
in a constitution, in order to remedy what is essentially a temporary
problem. As the sanction of all constitutions, however rigid, is only the
acceptance by the people at large, the imposition of a “Fundamental Right”
to which the people do not attach value can only have results detrimental
to the respect which the constitution of a country must receive from the
people.
Further, to include an elaborate corpus of fundamental rights in a
constitution is to limit the growth of the constitution. Legislation will be
restricted by a new set of dogmas to which semi-religious sanctity will
be attached by lawyers, and every act of the legislature will be subject
to the caprice of old men clothed with the authority of interpreting a
new smriti. Even in America, where the stresses and strains of national
life are much less evident, Federal Court decisions, as in the Dred Scott
case, led to the use of force for the removal of national life from the
mortmain of legal decisions; and it was only recently that the greatest
of modem Presidents had to attack the idea of “the Nine Old Men”
holding up constitutional progress.
In fact, we cannot forget, what Emile Faguet stated many years ago,
that while law represents the moral opinion of yesterday, judges represent
the moral values of the day before. In the circumstances, a very grave
and potent danger to the future of India is involved in incorporating as
part of the constitution a large number of unalterable points undo- the
title of fundamental rights.
This should not be understood to mean that I do not attach the greatest
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possible importance to the judiciary. But the point is that while the judi¬
ciary should be the guardian, the upholder and the champion of the rights
of the individual, and in a sense of the units, it should not be entrusted
with powers, restricting the legislative powers of the Union, except to the
barest extent possible and solely for the purpose of resisting the encroach¬
ments of the State on the liberty of the individual.
Two further general observations I would venture to offer. We seem
to have proceeded on the basis of what I call the doctrine of “the worst
precedents”, sedulously searched the constitutions of countries and taken
from them points whose main claim is their novelty. The method of
using religious property is put down as a fundamental right. Again it
seems to have been forgotten that we are not writing on a clean slate
in India. The doctrine of revolutionary validity, which postulates that the
whole sphere of constitutional activity is open to reconsideration according
to the opinions of a few “Fathers of the Constitution”, is not applicable to
India where over at least one-third of the area—in the territories of
Indian States—the constitution cannot be imposed. No doubt adjustments
will be required in the States to meet what is generally accepted as
fundamental rights; but it cannot be clearly forced on them.
Besides, the Swiss, Czechoslovakian and other constitutions to which
we have gone for inspiration did not have the problem of large areas
which may ultimately have only political agreements with the Union or
may agree to join only on certain conditions. In the circumstances the
attempt to invest the Union with the right of giving effect to this large
body of rights is to put a veto on the States joining the constitution. I
would earnestly urge that the justiciable rights should be divided into two
classes, one which is guaranteed at the Union and the other guaranteed
at the units level; those at the Union level should be few and really
fundamental. The rest may be incorporated in the constitution but should
be enforceable by the machinery of the units. Otherwise I foresee the gravest
danger to the constitution itself, for so all embracing and authoritarian a
Centre may not be accepted by the State units however desirous they
may be to come into a Union.
//—Comments on clauses
I give below my views in regard to certain articles in the chapter on
fundamental rights. I had submitted my observations in regard to some
of them at the meeting of the committee, but as already stated as decisions
had already been reached after discussion and it had become too late to
reopen issues, I have thought it best to record my views in this note. In
the observations which I make below I have endeavoured to look at the
questions both from the point of view of the practical difficulties that
any new constitution will have to face in dealing with so complex a social,
economic and political structure as the one that India presents and from
the point of view of the desirability of providing in the constitution
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(or rights which it is the object of all civilized States to secure to its
people.
Article 5 states that there shall be equality of opportunity for all citizens
in the matter of public employment As is well known in all the Indian
States and in most of the Provinces there is a well established policy of
giving preference to the people of the Province or the State concerned in
the matter of public employment In many cases where the local people
have but an inadequate share in the employment provided by the State,
this may even be considered necessary. All such preferences are declared
illegal not only in respect of employment in the Union but in the units;
and a justiciable right is sought to be created in this matter by providing
that equal opportunities shall exist for every citizen of India for public
employment I agree that no distinction shall be made on the grounds
of religion, race, caste or sex, but to provide that there shall be equality
of opportunity in the matter of public employment, whether in the unit
or in the Union, without reference to local conditions is I think utterly
impracticable. Again it is provided that no disability or disadvantage shall
exist on the basis of language in the matter erf employment. A simple
instance will prove that this is impracticable. Assuming it is provided that
for a person seeking employment in Cochin a knowledge of Malayalam is
essential as indeed it is, such a provision will create a disadvantage for
non-Malayalam knowing citizens and the provision may be declared ultra
vires by die courts.
Article 6 declares that “any enactment, regulation, judgment, order,
custom or interpretation of law, in force immediately before the commence*
ment erf this Constitution, by which any penalty, disadvantage or disability
is imposed upon or any discrimination is made against any citizen on any
of the grounds mentioned in section 4 shall cease to have effect”. This to
my mind is unreasonable for this would invalidate the provision that die
local language should be compulsory for appointment in areas where Hindi
and Urdu are not generally in use.
Article 10, sub-section (d) provides as follows:
The right of every citizen to the secrecy of his correspondence.
Provision may be made by law to regulate the interception or detention
of articles and messages in course of transmission by post, telegraph or
otherwise on the occurrence of any public emergency or in the interests of
public safety or tranquillity.
I am of the opinion that this restricts the powers of executive machinery
unnecessarily and limits the censorship erf correspondence and communica¬
tions to the occurrence of public emergency or in the interests erf public
safety or tranquillity. I think the administration of criminal law in the
country requires a wider provision. For example, it is impossible to prove
conspiracy, bribery and numerous other offences effectively except by the
production of correspondence. In fact, the extraordinary facilities open to
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criminals at the present time by the use erf modem methods of communica¬
tions render the discovery of crime difficult unless certain latitude is allowed
to executive authorities. I think this provision requires very close
examination. I may make it clear that I am not against the object that
this article has in view and the right it seeks to safeguard. I think
it requires much stricter examination before it can be accepted in its
present form.
Article 13 provides as a fundamental right adult franchise not only
in the Legislature of the Union but also in the legislatures of the units.
If the Union so desires it can make adult franchise a fundamental right
so for as Union Legislature is concerned but to provide in the constitution
that it will be a fundamental right in every unit is to extend the 9cope of
Union powers so greatly as to provide for the structure of the units them¬
selves. This to my mind is entirely beyond the powers of the Union
Powers Committee or the Fundamental Rights Committee. I would
recommended that the words “and of any unit thereof, or where the
Legislature is bicameral, to the lower chamber of the Legislature”
should be deleted.
I am also strongly against the provision made in sub-clause (3) of Article
13 in so far as it relates to units, viz .,—
The superintendence, direction and control of all elections to the Legislature
whether of the Union or of a unit, including the appointment of election
tribunals, shall be vested in an Election Commission for the Union or the
unit, as the case may be, appointed in all cases in accordance with the
law of the Union.
In regard to the right of free trade within the Union, the committee
has generally accepted the view that the existing rights of Indian States
in regard to customs duties should be respected and any dimunition of
that right should be by agreement with the States concerned. The matter
is of great importance as many of the States depend on this item for their
financial stability and agreements must be freely negotiated before this
article is incorporated in the constitution.
In Article 16, Explanation III provides that “No person shall refuse the
performance of civil obligations or duties on the ground that his religion
so requires”. To call this a fundamental right is to my mind to strain
the plain meaning of words. In a country like India where Sanyasa is
a part of the accepted tradition of life and is considered a fundamental
element of religion in many sects, this provision is both impracticable
and unwise. Where religion provides that a Sanyasi shall have no attach¬
ment to the world, to ask that he shall perform civil duties is in fact to
ask him to give up his religion. In the case of certain sects of Jains the
severance from civil life is so complete that their Sadhus refuse to give
evidence in courts of law, and even to use the ordinary machinery of
posts, telegraphs and railways. To compel them to perform civil obligations
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is to ask for disobedience on large scale on the basis of unalterable
moral convictions. However much we may consider such doctrines unsocial
we have to face existing facts and any attempt to change the doctrine of
renunciation of worldly attachment will not only be contrary to what is
accepted by large sections erf the community as a higher moral law, but an
invitation to resistance at all costs by the more orthodox sections erf the
people as being a challenge to their conscience. 1 would also venture to
add that to seek to bring in religious reforms by back door cannot be
considered as being within the legitimate sphere of the declaration of
fundamental rights.
Article 24 reads as follows—
Every citizen is entitled, as part of his right to free primary education, to
have facilities provided for learning the national language either in the
Devanagari or the Persian script at his option.
With the first part I am entirely in agreement, but the second part would
involve grave conflicts between the Centre and the units in large areas
involving millions of people. Such an attempt would be resisted by people
of many provinces on sentimental grounds of attachment to their languages.
Considered from die administrative point of view it is also impracticable.
Hie cost involved will be so high that the whole educational policy in
non-Hindi areas may possibly be wrecked on it. To provide in every
primary school at the option of the student for the study of the national
language in Devanagari or the Persian script in areas where these languages
are foreign will involve the appointment erf so many teachers that the cost
of primary education will become enormous.
If education was voluntary this might not have been so difficult but
when it is made compulsory to ask boys to be instructed in this language
also is to my mind impracticable. The agitation which followed the attempt
to introduce Hindi in Madras by Shri Rajagopalachari will at least indicate
how strongly people feel on this matter.
Article 20(2) provides that “Final civil judgments delivered in any unit
shall be executed throughout the Union subject to such conditions as may
be imposed by die law of the Union”. Unless the civil law in the entire
Union is uniform, this may lead to grave complications. For example,
the law of limitation differs in different units. In one State that I know
the limitation period for promissory notes is 6 years; in British India it
is 3 years; and thus a decision in the court of that State in favour of a
creditor whose promissory notes had become time-barred in British India
would have to be enforced in British India though according to the law of
British India the money would not have been claimable. I am giving
only one example but I can conceive of many such, which may lead to
grave consequences. I am therefore of the firm opinion that this clause
should be removed.
In regard to Article 30,1 agree with the view of Sir Alladi Krishnaswami
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Ayyar that the mandamus, quo warranto and certiorari stand on a different
footing to habeas corpus and should not be dealt with in the same manner.
Hie suspension of writs other than habeas corpus should be left to the
normal provisions of the law and cannot suitably be provided for in the
fundamental rights. I am definitely of the view that limits of the suspen¬
sion of habeas corpus to the circumstances provided in sub-section (3) are
necessary.
I offer no comments on the non-justiciable sections in this chapter. Many
of them are to my mind highly controversial but as they create no legal
rights and no sanctions have been provided for their enforcement they
can at best be considered as representing the ideals erf the framers of the
Constitution.
Ill—Machinery of enforcing fundamental rights
Undo: paragraph 20 of the Cabinet Mission’s proposals the Fundamental
Rights Committee has to advise whether these rights should be incor¬
porated in the Provincial, Group or Union constitution. The report of the
committee as now submitted, however, provides in paragraph 5 that, “Pro¬
visions on the lines set out in the Annexure be incorporated in the new
Constitution so as to be binding upon all authorities, whether of the Union
or the units”. I strongly dissent from this point of view. I do not accept
the view that all the 32 articles included as fundamental rights in this
chapter are of a character which could or should be enforced at the Union
level. Clearly some rights regarding the maintenance iff the liberty of
person and property, and those to which the nation attaches supreme
importance like freedom of conscience should be enforceable at the Union
level; but others do not have the same importance and may be left to
the units. I attach as an Annexure a list of some erf the articles which
I consider can appropriately be handed over to the units, though they
may be provided as fundamental rights in the Union Constitution.
I hold this view strongly for the reasons briefly discussed below—
(1) The complex of authority created by the enforceable fundamental
rights is so large that it vests in the Union Government supervi¬
sion, control and sanctions to an extent which will nullity the very
idea of the autonomy of the unit or the Province. To take one
example, if it is possible for every citizen to have the normal admi¬
nistrative refusal of a district authority or a local government to
the erection of places of worship, contested legally and fought out
in an appeal in the Supreme Court itself, then administration would
be rendered impossible. This Article instead of giving to the citizen
a valuable right will create endless complications for local adminis¬
trations and will also fan the flame of communal discord at every
stage. I agree that the right should not be unreasonably refused
but its enforcement must be left to the machinery of the units
concerned.
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(2) My second objection is that the enforcement of such rights except*
ing in regard to matters involving personal liberty may bring the
State into conflict with the units which could not be resolved by
any other method than federal execution, i.e., the use of the armed
forces of the Union to compel a unit to abide by the decision of
the Supreme Court. We do not yet know the constitution, composi¬
tion and scope of this body. The idea seems to be widely preva¬
lent that the Supreme Court will come into existence with a prestige
and authority similar to what is now enjoyed by the Federal Court
of the U.SA., or the Privy Council of England. But it is well to
remember that the Federal Court in America obtained its present
prestige only after many hard fights. In fact, in countries where
State or provincial patriotism was a marked characteristic of national
life the vesting of authority in a Supreme Court has not always
been found to be effective. And in a country like India where the
States or -Provinces may conceivably defy or refuse to give effect
to a decision of the Supreme Court, there will be insuperable difficul¬
ties in the Union enforcing military, political or economic sanctions.
In short, to entrust the Supreme Court with this authority is to ex¬
pect too much from it and to render it, even before it is constitut¬
ed, a subject of controversy in which its prestige is not likely to
increase.
For these reasons I definitely recommend that the Articles I have indi¬
cated in the annexed (see the Annexure) schedule in any case should be
enforceable by the machinery of the units and not by the Supreme Court.
This would naturally mean that Article 30 would have to be suitably
amended, especially sub-section 30(1) which says: “The right to move the
Supreme Court for the enforcement of any of the rights guaranteed by
this chapter is hereby guaranteed” will have to be amended.
ANNEXURE
Last clause in article 17.—The right to build places of worship in any place shall
not be denied except for reasonable cause.
Article 18.—No person may be compelled to pay taxes the proceeds of which
are specifically appropriated to religious purposes.
Article 19.—No person attending any school maintained or receiving aid out of
public funds shall be compelled to take part in the religious instruction that may be
given in the school or to attend religious worship held in the school or in premises
attached to them.
Article 20.—A property used for or in connection with religious worship shall
not be taken or acquired by the State, save for necessary works of public utility and
on payment of just compensation.
Article 23.—Every citizen is entitled as of right to free primary education; and it
shall be the duty of the State to provide within a period of 10 years from the
commencement of this Constitution for free and compulsory primary education for
all children until they complete the age of 14 years.
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Article 25.—Equal opportunities of education shall be open to all citizens :
Provided that nothing herein contained shall preclude the State from providing
special facilities for educationally backward sections of the population.
IV—Retrospective effect on laws
There is one fundamental point to which also I would like to draw
attention. It is provided that the fundamental rights, when incorporated
in the Constitution, will have retrospective effect; that is to say, all laws,
orders, regulations, etc., contrary to or inconsistent with the rights now
declared to be fundamental will stand automatically abrogated. The corpus
of Indian legislation is vast It has grown up over a period of 110 years.
Besides the Hindu and Muslim laws based on ancient texts as modified
by legal decision will also be affected in numerous ways. The single
instance of the “due process” clause which has led to the exchange of
learned notes by the lawyers on the committee would show how dangerous it
is to provide for the automatic invalidation of existing laws. This point
was pressed on the committee and the report contains the clause that they
have not had the time to examine the effects of their propositions on exist¬
ing legislation. This is not sufficient to my mind. A positive recommenda¬
tion should be made to the Constituent Assembly that an expert com¬
mittee should be appointed to study the effects of these general propositions
on the existing laws, and only after the Assembly is fully made aware
of the results that may follow should a final decision be taken to incor¬
porate them in the Constitution as fundamental rights.
K. M. Panikkar.
X
1. I have differed from my colleagues, or a majority of them, on the
following:
(i) Distinction between justiciable and non-justiciable rights;
(ii) The right of married women to retain the citizenship of their
birth;
(iii) Reasonable restrictions on freedom of internal trade for reasons
of social reform;
(iv) Conscription for social service;
(v) Right of conscientious objection to retain civil obligations;
(vi) Property of religious bodies;
(vii) Marriage as a monogamous civil contract;
(viii) Guarantee to private individual property in certain forms of
natural wealth [eg.. Article 27 (now 26) ];
(ix) Right to work, or to employment.
Distinction between justiciable and non-justiciable rights
2. While appreciating the distinction between justiciable and non-justici¬
able rights, I hold that, owing to the very fact of such'a distinction being
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FRAMING OF INDIA’S CONSTITUTION
drawn, the latter category of rights would remain no more than so many
pious wishes. Given this differentiation, the Union and the unit Govern¬
ments will be encouraged to stress or invent excuses why any one of these
non-justiciable rights should not be given effect to. By keeping them on the
Statute Book without making them imperative obligations of the State
towards the citizen, we would be perpetrating a needless fraud, since it
would provide an excellent window-dressing without any stock behind that
dressing.
3. There are, moreover, many rights in this category, which it may not
be practicable all at once to give effect to. We have ourselves provided
an illustration of this in laying it down as a fundamental right (justici¬
able) of the citizen to a given standard of education, free of cost to the
recipient, his parent or guardian. Admittedly, such a policy may not be
feasible all at once for reasons of finance and personnel. To meet this
difficulty, we have made this right enforceable within a period of not more
than ten years. Once an unambiguous declaration of such a right is made,
those responsible for giving effect to it would have to bestir themselves
to find ways and means to give effect to it. If they had no such responsi¬
bility placed upon them, they might be inclined to avail themselves of
every excuse to justify their own inactivity in the matter, indifference, or
worse.
Obligations of the State
4. At the last sitting of our sub-committee, the heading of that part
of our report which deals with non-justiciable rights, was changed into
“Fundamental principles of social policy”. This is an improvement, as far
as it goes. But unless these “Principles of social policy” are specifically
made obligations of the State to the citizen, the apprehension felt by me
will be more than realised. For these are not, as I view the matter, mere
directions of policy. They are rather mandates of the community to its
organized representative, the State, to be carried into effect at the earliest
possible opportunity; and not to be played with as mere catchwords to
delude or deceive. There should, therefore, be no such distinction; and
the “Principles of social policy” must be categoric injunctions, or obligations
of Government, to be given effect to as soon as possible.
(i) Obligations of the citizen
5. Lest the tale of obligations sounds one-sided, I would add that corres¬
ponding to the rights of citizens, there are also implied or declared
obligations of the citizens. There is, I fear, too much talk of rights every¬
where; and distressing silence in regard to duties. In a modern society,
where the division of labour or specialization of function is so widespread
and complex; where every individual is necessarily dependent upon the
co-operation of his fellows, there cannot be rights only, without any thought
or mention of duties. Rights and duties must go hand in hand, if we
are to progress on right lines.
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6. Not all these duties need, however, be expressly stated. From the
nature of the case, many of them are taken for granted; e.g., the duty
to contribute towards the burdens of Government in proportion to one’s
ability; or the obligation to join in the tasks of national defence. Because
of the comparative unfamiliarity of that other civic obligation,—the duty
to work,—the right of the State to conscript the entire man-power of the
community for social service must be expressly stated to be used if and
when the State organizes the country’s resources, and mobilizes the man ,
power to develop the same to their utmost capacity.
(ii) Married woman’s right to reserve her native citizenship
7. In die sub-committee’s report provision is left to be made by the
law erf the Union, for “the ’accrual, acquisition, and termination” of the.
citizenship of the Union. I am afraid these words might not include the
case erf a woman who, originally a citizen erf the Union, marries a non¬
citizen, and yet desires to retain her citizenship by birth. The terms
“accrual, acquisition and terminatiem” would not necessarily inclueie
“retention”. It must, therefore, be specifically provided for in the
fundamental rights erf citizenship.
8. I may add that this matter has already been a subject of international
convention. In times of war, particularly, women, originally citizens of
the country, but married to those of another which may conceivably be
at war with the former, may find themselves in great difficulty, unless the
right to retain their native citizenship is expressly reserved. This will be
particularly important if the Union of India does not eventuate, as con¬
templated in this draft, and some parts of this country become alien
ground.
(iii) Restrictions on freedom of internal trade
9. Article 13, (now 14) even as re-drafted, does not permit restrictions
being imposed by any unit on the freedom of trade within the Union on
grounds of social reform. The resolve of a unit, for instance, to prohibit
intoxicating drinks or drugs altogether within its jurisdiction, or stop other
kinds of immoral traffic, will not be covered by the proviso permitting
“reasonable restriction in the interests of public order, morality or
health”. For it may be argued that drinking or the use of drugs in
moderation will not hurt the health of the user. They may even be needed
as medicine. And “morality” is too vague a term to be depended
upon for this purpose. I would, therefore, like the ground of “social
reform” being added expressly to the exceptions permitted in that
Article.
(iv) Conscription for social service
10. In the explanation to Article IS, I would like to substitute “national
or social service” in place of “education”. I recognize “education” as
•These words were omitted from the draft report subsequently.
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amongst the foremost of our needs of nation-building, for which conscrip¬
tion would be fully justified. But that does not make the claims of
other items in nation-building, or social service, like health, the less
urgent.
11. Later on in this note, I have argued for inclusion in the fundamental
rights of citizenship the right to work or employment to be guaranteed
to every citizen by the State. In order to make this guarantee real, every
unit will have to prepare a comprehensive plan of its own development,
to be integrated in an over-all National Plan. There is no hope erf the
imm ense poverty of India being ever remedied, and the people erf India
being assured a decent standard of living, without a National Plan for
all-round development. Work can also be provided for every adult citizen,
in accordance with the ability, training and aptitude of each individual,
if there is such a plan in every region in operation. I am afraid it will
not be possible for independent, sovereign India to make up the
long leeway she suffers from, in social as well as economic matters, with¬
out an all-round plan, which organizes and provides work for every
citizen.
(v) Right of conscientious objection
12. Article 16, Explanation III, provides : “No person shall refuse the
performance of civil obligations or duties on the ground that his religion
so requires.”
If a civil obligation is imposed to kill rats as plague carriers, or commit
any similar Himsa for similar reasons, a conscientious Jain would refuse
to shoulder such an obligation, or perform such a duty. The right
of the genuine conscientious objector, in such cases, should. I think,
be safeguarded.
(vi) Property of religious bodies
13. Some of my colleagues have, I believe, dissented from the provisions
of Articles 17 and 21 which relate to property of religious organizations.
I would associate myself with them on the grounds they have mentioned;
and add that all kinds of property in the hands erf religious bodies escapes
civic obligations by way of taxation, etc. Death or estate duties cannot be
charged upon such property, as it is in mortmain, the hands of perpetual
corporations. I consider this unfair to the community, as it was the forebears
erf the present generation of the people of this country who made the original
endowments; and I see no justification why such readily available and
mobilized resources should not be available to the present generation to be
utilized for the benefit of this and succeeding generations. I do not see any
reason why they should remain for ever immobilized, and so cause
a needless handicap in the task of the fullest possible development of
our social services and economic resources for improving substantially
the lot of the masses. Those articles are, accordingly, unnecessary and
may be omitted.
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(vii) A common civil code for social institutions as marriage
14. While accepting the principle of a common civil code, mentioned
in Articles 41 (now 39) and 42 (now 40), I think it necessary to give some
indication of the basic principles of that code. For instance, I hold that
marriage should, in the eyes of the law, be no more than a civil contract
of a monogamous character i.e., both parties must be of age, free from any
coercion or undue influence, and entitled to equal rights and duties under
the contract. No impediment should be cast in the way of freedom of
choice in marriage on grounds like difference in religious beliefs between
the parties. Nor should any special disability or handicap be imposed, such
as that under the Special Marriages Act of 1872, under which intending
parties to a marriage,—both Indians professing different religions, have to
declare that they do not profess any of the named religions. This leads
to unnecessary perjury; and comes in the way of a real unification of this
country.
(viii) Private property in certain forms of national wealth
15. Article 27 (now 26), guaranteeing, as it were, individual property
should be made subject to some exceptions in regard to those forms of
natural wealth, which, like land, flowing water in rivers, or lakes, whereon
hydro-electric works may be based; mines and minerals, coastal waters
wherein valuable fisheries might be found, are the sources of producing
new wealth. These must be owned publicly, and operated for the common
benefit. They should be open to the fullest possible development and
exploitation by collective effort. No room should be left for a private
proprietor to interpose his veto, in his selfish interests upon the proper
utilization of such natural resources.
16. it is not merely reasons of economic efficiency in developing these
resources, or of social justice in distributing their benefits, that dictates
this exception against unlimited guarantee erf the rights of private property.
Reasons of national defence are no less imperative. There are minerals,
for instance, found in the different parts of India which may prove of
vital importance in the organization of national defence. The risk of their
being alienated by a private proprietor seeking his own profit to foreigners,
whose country may conceivably be at war with ours, is too great not to
require being fully safeguarded against.
17. Nor should a private proprietor, individual or corporation, be entitled
to keep these resources undeveloped if he cannot develop them himself.
Such a dog-in-the-manger policy is no figment erf imagination. Moreover,
these are not all perennial assets. Once exhausted, a mine cannot
be renewed. Once denuded, a forest will take long years to replace. Pearl
fisheries need to be carefully protected, even as whale hunting has had
to be regulated by international convention. Such protection or regulation
will not be easy unless the rights of ultimate ownership in these forms of
natural wealth are reserved to the community.
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18. We must, therefore, see to it that the fullest opportunity is provided
for the utmost utilization of such sources of new wealth by collective effort
for the common benefit. If individual proprietors have to be expropriated
for this purpose, reasonable compensation should be given to them. But
even here, it must be remembered that, in the case of developed land
and exploited mines at least, the individual proprietor must have, in many
cases, benefited himself several times over the value of his property. This
should be taken into account before any policy of expropriation with
compensation is adopted and carried into effect
(ix) Right to work, or to employment
19. The right to gainful employment, or useful work, should be guaran¬
teed to every citizen, as part of the fundamental rights. It must be amongst
the most imperative Obligations of the State to organise, coordinate and
distribute productive work, so that no able-bodied citizen be unable to
get work suited to his qualifications, taste, or aptitude. None should be a
parasite, none a burden or a nuisance to society, who can work for his living.
20. Without this right being guaranteed, all other rights and freedom
will be meaningless. As the late President Roosevelt has said: “Neces¬
sitous men are not free men”. People who are out of,, job, to use the
language of the same great statesman and democrat, are the stuff of which
dictatorships are made. Individual freedom cannot exist without econo¬
mic security; and that is why he included it amongst the famous four
freedoms which were to be the appropriate foundation as well as symbol
of the new age of freedom and democracy.
21. The provision in Article 37{i) [now 3S(ii>] of the Fundamental Rights
Sub-Committee’s Report,—that the citizens, men and women equally, have
the right to an adequate means of livelihood,—and later on to some sort
of social insurance or security is not enough, not only because it was included
among the non-justiciable rights,—only pious wishes or mere principles
of polity for the general guidance of the State; but also because it might
be interpreted as satisfied if the State institutes some form of dole to the
unemployed, or provides something like our existing Famine Relief Work.
I would like it to be categorically asserted and assured as a fundamental
right. In consequence, an imperative obligation will have to be shouldered
by the State to organize and provide remunerative work to every citizen in
accordance with the training, taste, or aptitude of each, so that there be no
suspicion of charity in the work provided by public agency for those who
cannot get it under private enterprise.
22. In times of depression, it has already become the practice, in all
advanced communities conscious of the responsibility of the community
to the individual, to “create” work for unemployed citizens. This may
take the shape of public works,—like roads, wells, canals, soil conservation
etc. Work organised and provided under the Famine Relief Code in India
is an instance of the same kind.
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23. These are, however, all cases of uncoordinated effort, undertaken
spasmodically, when a widespread emergency actually occurs. Such work
also involves some kind erf a stigma of charity. It is admittedly of a tempo¬
rary nature, which would be given up the moment the particular emer¬
gency is over. There is thus needless waste in money as well as energy,
which may well be used to much better purpose, if all work in die
community is carefully planned in advance, mutually adjusted and
co-ordinated, and scientifically distributed among the workers according to
the ability, aptitude and qualifications of each. Such work would not
be unproductive, as it would include the entire effort of the community,
properly organized, so as to develop fully all its productive resources,
services and utilities, and thereby provide useful work to every member able
and qualified for the purpose.
24. The right to gainful work or useful employment is assured to the
citizen only. Such work, if it is to be fruitful, must be adjusted to the
capacity,—physical as well as mental,—training and aptitude of the
worker. In view of the large numbers enjoying this right, and in view
also of equal pay for equal work, there need be no fear of too many
seeking a few lines of employment only, and other lines suffering from
shortage of workers, provided there is a proper planning and assignment of
the work in advance.
25. The right, it need hardly be added, is coupled with the duty to work.
None shall starve who works ; but none shall eat who does not work. This
must be categorically laid down as an unexceptioned maxim of our national
policy, to be given effect to by the State organizing and providing suitable
work for every citizen in accordance with each one’s capacity and qualifi¬
cations.
26. Exception to the rule may be permitted in all cases where, owing
to temporary illness or accident or permanent disability due to old age,
an individual is incapacitated from normal work. Every endeavour should
be made to find work suitable for those suffering from remediable disabilities.
With a nation-wide plan including all occupations, this would cause no
difficulty. Those temporarily incapacitated by illness or accident should
be excused ordinary work for the time being and care provided for them
under a national system erf social security or insurance.
27. Children of school-going age at school must be regarded as preparing
for work when they have received proper training. Just as providing for
their education upto a minimum standard is agreed to be an obligation
of the State, so, too, the provision of work for them when they are duly
trained and qualified should be a national obligation, to be discharged
through the Government of each unit, aided and advised when required
by the National or Union Government. Public expenditure on the educa¬
tion of the people or their health is no waste. It is the soundest of all
national investments.
14
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28. The same principle must apply to the case of the aged and the
superannuated. They must be taken to have worked sufficiently in their
youth and health to have earned their pension. They deserve maintenance
by the community in their old age and incapacity and be excused hard
work. Provision on this account should also be considered as in the nature
of insurance benefit, for which, hereafter at least, every worker should be
required to contribute his premium. The scheme will then become self-
sufficient, and the aged, indisposed, or incapacitated worker will receive
no favour or charity when he accepts his insurance benefit as his due.
29. The report of the Sub-Committee on Fundamental Rights provides
that equal work should be equally remunerated, for men as well as women.
The work of the housewife in the home must be treated, for purposes of
this right (or rather as a matter of national accounting) as useful work,
which must be fully recognized as such by the State. Real emancipation
of women will not be possible without this recognition.
30. Apart from these exceptions,—if they may be called exceptions,—no
exemption should be allowed from the civil obligation to work, or the
State’s duty to provide employment. As in the case of the State’s obliga¬
tion to provide a prescribed minimum of education to every child in the
community, free erf cost, which is permitted under the report of the sub¬
committee to be made good in ten years, this obligation too, may be allowed
to be fully discharged in a like or less time.
31. For this right to be real and of daily enjoyment it may be that whole¬
sale reorganization and reconditioning of our national economy will become
necessary. That is, however, inevitable in any case, if we desire to resume
our arrested march for progress and economic development. If the com¬
munity realizes the advantage of such planned development, the objective
sought to be attained under this right would be attained in less time than
seems likely today. It is all a matter of national conscience and the national
will to make Swaraj real and lasting for all.
K. T. Shah.
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SUB-COMMITTEE ON MINORITIES
April 1947
[The Subcommittee on Minorities appointed on February 27, 1947,
along with the Fundamental Rights Subcommittee [sec Document
No. 4(i)], decided, at its meeting on April 17 first of all to examine
the draft clauses recommended by the Fundamental Rights Sub¬
committee in its report of April 16 [see Document No. 4(i)] in order to
see whether any of them required to be amplified or amended for the
specific purpose of protecting minority rights. The discussion lasted
three days, viz., April 17, 18 and 19. An interim report dealing with
the question of fundamental rights from the point of view of minorities
was submitted by the sub-committee on April 19. The minutes of the
Minorities Subcommittee meetings and the Interim Report are
reproduced below.]
(i) MINUTES OF THE MEETINGS OF THE SUB-COMMITTEE
April 17-19, 1947
April 17, 1947
Present: (1) Dr. H. C. Mookherjee, Chairman, (2) Dr. B. R. Ambedkar,
(3) Sardar Jogendra Singh, (4) Dr. Syama Prasad Mookerjee, (5) Sardar
Ujjal Singh, (6) Dr. Gopi Chand Bhargava, (7) Shri H. J. Khandekar, (8)
Mr. P. R. Thakur, (9) Shri P. K. Salve, (10) Mr. S. H. Prater, (11) Mr. F. R.
Anthony, (12) Rajkumari Amrit Kaur, (13) Shri Jairamdas Daulatram,
(14) Mr. R. K. Sidhwa, (15) Shri Rup Nath Brahma, (16) Mr. M. Ruthna-
swamy, (17) Mr. M. V. H. Collins, (18) Dr. Alban D’Souza, (19) Shri
K. M. Munshi, (20) The Hon*ble Pt. Govind Ballabh Pant.
In attendance: (1) Mr. H. V. R. Iengar, Secretary, (2) Mr. B. F. H. B.
Tyabji, Deputy Secretary.
Before the commencement of the proceedings, the Chairman stated that
he had received apologies for non-attendance from the three Members of
the Interim Government, who were members of the committee as they
had to attend a Cabinet meeting that morning. He then obtained the com¬
mittee’s approval to the minutes of the meeting being recorded on the
same lines as those of the Sub-Committee on Fundamental Rights, namely.
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that the minutes should only record decisions and important points which
members may desire to be recorded. Draft minutes containing this would,
as far as possible, be circulated by the Secretariat on the same day, and
be considered by the committee at its next meeting.
On Mr. Sidhwa’s motion, it was agreed that this procedure should apply
also to the minutes of the previous meetings, which should be redrafted and
submitted for the approval of the committee when it next met.
On an enquiry by the Chairman, whether there was any objection to the
memoranda prepared by members for the committee being published, it
was agreed that memoranda specifically prepared for the committee should
not be published until after the committee had reported, as it might other¬
wise prejudice their proceedings.
The Chairman also stated that memoranda submitted by members which
had not yet been circulated because the Secretariat had not received them
would be circulated immediately if the members concerned would hand in
a copy to the Secretary. A classified summary of such memoranda would
also be prepared as soon as possible.
2. After discussion, it was agreed that the committee should first of all
consider the report of the Fundamental Rights Sub-Committee, paragraph
by paragraph, to see whether any of the provisions recommended by it
requires to be amplified or amended for the specific purpose of protecting
minority rights.
The Chairman then called upon Mr. K. M. Munshi to read out the
report of the Fundamental Rights Sub-Committee,* and to explain its recom¬
mendations, where necessary.
3. After Mr. Munshi had done this, the recommendations were discussed
paragraph by paragraph, and the following points were noted for subsequent
consideration:
Fundamental Rights Sub-Committee’s Recommendations
Clauses 1 to 3. No comments.
Clause 4. Messrs. Sidhwa and Salve questioned the omission of inns,
public eating houses and hotels from the purview of this clause on the
ground that discrimination in such places should not be permitted.
Dr. Syama Prasad Mookerjee : “Denominational schools” should be
omitted from the application of this clause.
Clause 5. Sardar Ujjal Singh: It should be made clear that this clause
would not debar rules being made for giving special consideration to
minority communities in recruitment to public services.
Clause 6. No comments.
Clause 7. Dr. Syama Prasad Mookerjee and Mr. Thakur wished to have
a definition erf “untouchability” to make it clear that it did not cover non-
Hindus.
•Document No. 4(viii).
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SUB-COMMITTEE ON MINORITIES
201
Mr. Khandekar : “Private untouchability” should also be prohibited.
Clause 8. No comments.
Clause 9. Mr. Munshi drew attention to the necessity of permitting all
citizens to use their mother-tongue and script for all private purposes. (Para
1 of his letter already circulated—See Annexure.)
Clause 10. Mr. Brahma: Provision should be specifically made for the
creation of exclusive belts of tribal territory for the Assam tribes.
Mr. Khandekar : There should be no persons classified as a criminal
tribe.
Dr. Ambedkar: The existing legislation regarding criminal tribes should
be carefully examined in order to see how far it was affected by this clause
and clause 12.
Mr. Daulatram: Provision shall be made in sub-paragraph (a) of the
clause to make the dissemination of class or communal hatred an offence.
Clause 11. No comments.
Clause 12. No comments.
Clause 13. Dr. S. P. Mookerjee: Minorities should be adequately repre¬
sented on the Election Commissions proposed for the Union and the units.
Mr. Jairamdas Daulatram suggested that such bodies should be made
neutral so that they may inspire confidence among all parties and commu¬
nities. Separate representation for the minorities may not be workable.
Clause 14. No comments.
Clause 15. No comments.
Clause 16. Mr. Ruthnaswamy pointed out that certain religions, such
as Christianity and Islam, were essentially proselytizing religions, and provi¬
sion should be made to permit them to propagate their faith in accordance
with their tenets.
Mr. Thakur: All religions should have freedom to observe their practices
in all public {daces, such as the playing of music before mosques.
Clause 17. Dr. S. P. Mookerjee pointed out the necessity at regulating
the right of building places of worship in public places only on the condi¬
tion that the public rights of members of other communities were not in¬
fringed, such as the use of a public highway for processions after a new
place of worship had been built on it. The right to repair places of worship
should also be guaranteed.
Mr. Munshi desired that the rights of minorities to form and manage
charitable, religious and social institutions at their own expense should be
guaranteed. (Para 2 of his letter already circulated—See annexure).
Clause 18. Sardar Ujjal Singh: The right of every religious community
to tax itself by legislation, if necessary, for religious or other purposes should
be guaranteed.
Dr. Ambedkar supported this and referred to paragraph 20, page 12 of
his pamphlet on “States and Minorities” circulated to members of the
Advisory Committee.
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framing of India’s constitution
Clause 19. No comments.
Clause 20. Pandit Pant: The clause should make it clear that it
excluded all property except that which was actually used for purposes of
worship.
Sardar Ujjal Singh: The clause should be omitted, as it would only give
a loophole to the State to acquire places of worship, such places had never
been acquired in the past, and should never be acquired in the future.
(Discussion on this clause had not terminated when the committee rose
for the day.)
4. The next meeting of the committee will be held at 10 A. M. on the
18th April 1947, at the same place.
ANNEXURE
LETTER FROM K. M. MUNSHI CIRCULATED TO THE MEMBERS OF
THE SUB-COMMITTEE ON MINORITIES
April 16, 1947
The Fundamental Rights Committee decided that certain rights for the protection
of minorities which I wanted to be incorporated in the fundamental rights should
properly be placed before the Minorities Committee. I am therefore submitting the
accompanying draft for the consideration of the Minorities Committee.
1. All citizens are entitled to the use of their mother tongue and the script
thereof, and to adopt, study or use any other language and script of his choice.
2. Citizens belonging to national minorities in a State whether based on religion
or language have equal rights with other citizens in forming, controlling and
administering at their own expense, charitable, religious and social institutions, schools
and other educational establishments with the free use of their language and practice
of their religion.
3. Religious instruction shall not be compulsory for a member of a community
which does not profess such religion.
4. It shall be the duty of every unit to provide in the public educational
system in towns and districts in which a considerable proportion of citizens of other
than the language of the unit are residents, adequate facilities for ensuring that in
the primary schools the instruction shall be given to the children of such citizens
through the medium of their own language.
Nothing in this clause shall be deemed to prevent the unit from making the
teaching of the national language in the variant and script of the choice of the
pupil obligatory in the schools.
5. No legislation providing state aid for schools shall discriminate against schools
under the management of minorities whether based on religion or language.
6. (a) Notwithstanding any custom or usage or prescription, all Hindus without
any distinction of caste or denomination shall have the right of access to and
worship in all public Hindu temples, choultries, dharmasalas, bathing ghats, and
other religious places.
(b) Rules of personal purity and conduct prescribed for admission to and worship
in these religious places shall in no way discriminate against or impose any disability
on any person on the ground that he belongs to impure or inferior caste or menial
class.
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203
April 18, 1947
Present: Dr. H. C. Mookherjee, Chairman, The 1)01)1)16 Shri Jagjivan
Ram, The Hon’ble Maulana Abul Kalam Azad (attended morning sitting
only). Dr. B. R. Ambedkar, Sardar Jogendra Singh, Dr. Syama Prasad
Mookerjee, Sardar Ujjal Singh, Dr. Gopi Chand Bhargava, Shri H. J.
Khandekar, Mr. P. R. Thakur, Shri P. K. Salve, Mr. S. H. Prater, Mr.
F. R. Anthony, The Hon’ble C. Rajagopalachari (attended morning sitting
only), Rajkumari Amrit Kaur, Shri Jairamdas Daulatram, Mr. R. K. Sidhwa,
Shri Rup Nath Brahma, Mr. M. Ruthnaswamy, Mr. M. V. H. Collins,
Dr. Alban D’Souza, Shri K. M. Munshi, The Hon’ble Govind Ballabh Pant.
In attendance: (1) Mr. H. V. R. Iengar, Secretary, (2) Mr. B. F. H. B.
Tyabji, Deputy Secretaiy.
On a motion by the Chairman the draft minutes of the previous meetings
of the committee, as circulated by the Secretariat, were approved.
2. Mr. Jairamdas Daulatram referred to the reports of yesterday’s meet¬
ing, which had appeared in certain newspapers. It was agreed that the
publication of such information was objectionable, and both members and
the Secretariat should ensure that it should not occur in future. He then
enquired about the future time-table erf the committee. After discussion
it was agreed that the committee should endeavour to finish discussion on
fundamental rights for minorities during its present session and submit
a report regarding them to the Advisory Committee before it met on
the 21st April, 1947. Its subsequent programme erf work would be fixed later.
3. Discussion on the recommendations of the Fundamental Rights Sub-
Committee was then resumed.
Clause 20. S. Ujjal Singh : It should be redrafted to read. “The State
shall not acquire any place of public worship. It may however acquire
properties endowed or attached to a place of worship if the same is needed
for essential public utility works on payment of just compensation”.
Clause 21, Mr. Ruthnaswamy: Its provisions will break up family life.
A minor should be allowed to follow his parents in any change of religion
or nationality which they may adopt.
Clause 22. Mr. Rajagopalachari questioned the necessity of this provi¬
sion, when it was covered by the ordinary law of the land, e.g., the Indian
Penal Code.
Clause 23. Mr. Prater: The right of education in the mother tongue of
a child to be guaranteed.
Clause 24. Mr. Munshi referred to paragraph 4 of his letter (already
circulated) making provision for the education of children in their own
mother tongue.
Clause 25. Mr. F. R. Anthony: The word “reasonable” should be
substituted in place of “special” before “facilities” in the last but one line Of
the clause.
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FRAMING OF INDIA’S CONSTITUTION
Clause 26. Mr. Rajagopalachari: This clause would affect the minorities
inasmuch as it would make nationalization of industries etc. more difficult
Clauses 27 to 32. No comments.
part n
Fundamental Rights — Non-Justiciable
Clauses 33 and 34. No comments.
Clause 35(1). Mr. Munshi: This should be made justiciable.
Clause 35(5). Mr. Ruthnaswainy: This should be made justiciable.
Clause 35(6). Mr. Ruthnaswamy: This should be made justiciable.
Mr. Khandekar: No race shall be classified as martial or non-martial.
Clauses 36 to 38. No comments.
Clause 39. Mr. Munshi : This affects minorities and requires consid¬
eration.
Clause 40. Mr. Munshi: This affects minorities and requires considera¬
tion.
Clauses 41 to 45. No comments.
4. The clauses having been gone through and the points for discussion
noted, the committee took up each of these points seriatim. After discus¬
sion the following conclusions were readied by the committee:
Clauses 1 to 3. Approved.
Clause 4. There should be an addition made in the clause providing
against discrimination on the ground of religion, race, caste, language or
sex in trading establishments, public hotels and restaurants.
(2) Schools should be omitted from the purview of this clause and should
be treated separately. The second sentence of the clause should be redrafted
as a separate clause; and should read as follows:
There shall be no discrimination against any person on any grounds of
religion, race or caste in regard to the use of wells, tanks, roads and
places of public resort maintained wholly or partly out of the public
funds, or dedicated to the use of the general public.
Clause 5. A note should be made [in the same manner as in clause 14
(1)] to make it clear that a proviso may have to be added to meet the claims
of minorities to special representation in the services.
(b) The word “that” should be substituted for “a” before “particular”
occurring in the last but one line of the clause.
(c) After the word “institution” insert the words “or the members of a
governing body thereof’.
Clause 6. After the word “penalty” insert the word “obligation”.
Clause 7. Approved.
Clause 10. Sub-clause (e): The effect of this clause on existing legislation
regarding criminal tribes should be examined. A note drawing attention to
this should be included in the report to the Advisory Committee.
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205
Sub-clause (/): Mr. Brahma suggested that an amendment should be
made to make it clear that lands may be reserved for minorities, such as
the Assam tribes. He thought that the expression “public interest” may
not be adequate for this purpose. It was decided that attention should be
drawn to this aspect of the case in the report to the Advisory Committee.
Clause 13: It was decided to mention in the report that the Election
Commission should be an independent quasi-judicial body.
Clause 16: It was decided to recommend the redraft of this clause as
follows:
All persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion subject to public order,
morality or health and to the other provisions of this chapter.
And that in Explanation 2, for the words “religious worship” “religious
practice” should be substituted.
This decision was carried by a majority of 10 to 5; the dissentients
being Rajkumari Amrit Kaur, Mr. Jagjivan Ram, Pandit Govind Ballabh
Pant, Mr. Salve and Dr. Ambedkar.
Clause 17: It was decided to recommend the redraft of the second para
of this clause as follows:
The right to build and maintain places of worship shall not be denied except
for reasonable cause.
The committee also accepted the following in principle, namely, that
the location of such places of worship shall not interfere with the freedom
of any person to use a public road without let or hindrance.
Clause 20 was discussed but a decision was postponed till tomorrow.
April 19, 1947
Present : (1) Dr. H. C. Mookherjee, Chairman, (2) The Hon’ble Shri
Jagjivan Ram, (3) The Hon’ble Maulana Abul Kalam Azad (attended
morning sitting only), (4) Dr. B. R. Ambedkar (attended morning sitting
only), (5) Sardar Jogendra Singh, (6) Dr. Syama Prasad Mookerjee,
(7) Sardar Ujjal Singh, (8) Shri H. J. Khandekar, (9) Mr. P. R. Thakur,
(10) Shri P. K. Salve, (11) Mr. S. H. Prater, (12) Mr. F. R. Anthony, (13) The
Hon’ble C. Rajagopalachari (attended morning sitting only), (14) Rajkumari
Amrit Kaur, (15) Shri Jairamdas Daulatram, (16) Mr. R. K. Sidhwa,
(17) Shri Rup Nath Brahma, (18) Mr. M. Ruthnaswamy, (19) Mr. M. V. H.
Collins, (20) Dr. Alban D’Souza, (21) Shri K. M. Munshi, (22) The Hon’ble
Govind Ballabh Pant (attended morning sitting only).
In attendance: (1) Mr. H. V. R. Iengar, Secretary, (2) Mr. B. F. H. B.
Tyabji, Deputy Secretary.
On a motion by the Chairman the minutes of the previous meeting of the
committee were approved.
It was further agreed that in the report, which would be submitted to
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FRAMING OF INDIA’S CONSTITUTION
the Advisory Committee when it met on the 21st April 1947, it should be
made clear that the report was only an interim report, concerned solely
with the views of the Sub-Committee on Fundamental Rights in so far as
they specially affected minority interests. The committee’s recommenda¬
tions on other aspects of the minority question would be made subsequently.
2. The committee resumed consideration of the points noted for discus¬
sion on the various clauses recommended by the Fundamental Rights Sub¬
committee. The following decisions were made:
Clause 20: Recommend the redraft of this clause as follows :
Any property continuously used for public religious worship shall not be
taken or acquired by the State, save for necessary works of public utility
on payment of just compensation and with the consent of the parties con¬
cerned which shall not be unreasonably withheld.
Clause 21: Recommend the redraft of this clause as follows :
(a) No person under the age of 18 shall be made to join or profess any
religion other than the one in which he was born, except when his parents
themselves have been converted, and the child does not choose to adhere
to his orginial faith ;
Nor shall such person be initiated into any religious order involving a loss
of civil status.
(b) No conversion shall be recognized unless the change of faith is attested
by a Magistrate after due inquiry.
Clause 30 — Sub-Clause 2: After “directives” add “including writs” and
omit the words “the writs” in the third line.
Clause 35 — Sub-clause (/): Recommend that for the word “persons”,
“citizens” be substituted and the clause transferred to an appropriate place
among the justiciable rights, with a proviso to make it clear that certain
persons occupying high positions in the State during their tenure of office
may have to be subjected to special procedure.
Clause 39: This clause may be redrafted to make it clear that while
a uniform civil code for all citizens was eminently desirable, its applica¬
tion should be made on an entirely voluntary basis.
3. Matters which were held over for subsequent discussion were then
considered; and it was decided that the following provisions should be
incorporated in the fundamental rights at the appropriate places.
Cultural and Educational Rights of Minorities
(i) All citizens are entitled to use their mother tongue and the script thereof
and to adopt, study or use any other language and script of their choice.
(ii) Minorities in every unit shall be adequately protected in respect of their
language and culture, and no government may enact any laws or regula¬
tions that may act oppressively or prejudicially in this respect
(iii) No minority whether of religion, community or language shall be
deprived of its rights or discriminated against in regard to the admission
into State educational institutions, nor shall any religious instruction be
compulsorily imposed on them.
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207
(iv) All minorities whether of religion, community or language shall be
free in any unit to establish and administer educational institutions of their
choice, and they shall be entitled to State aid in the same manner and
measure as given to similar State-aided institutions.
(v) Notwithstanding any custom, law, decree or usage, presumption or
terms of dedication, no Hindu on grounds of caste, birth or denomination
shall be precluded from entering in educational institutions dedicated or
intended for the use of the Hindu community or any section thereof.
(vi) No disqualification shall arise on account of sex in respect of public
services or profession or admission to educational institutions save and
except that this shall not prevent the establishment of separate educa¬
tional institutions for boys and girls.
4. This concluded the discussions of the committee on the recommen¬
dations of the Fundamental Rights Sub-Committee.
5. On a motion by the Chairman the draft interim report of the com-
mitee was then read out and approved, ft was decided that it should be
circulated immediately to all members of the Advisory Committee for
consideration at its meeting on the 21st April 1947. The subsequent
programme of the Minorities Sub-Committee will be decided later.
(H) INTERIM REPORT OF THE SUB-COMMITTEE ON MINORITIES
April 19, 1947
From
Dr. H. C. Mookherjee,
Chairman, Minorities Sub-Committee,
To
The Chairman,
Advisory Committee on Minorities,
Fundamental Rights, etc.
Sir,
On behalf of the members of the Sub-Committee on Minorities appointed
by the Advisory Committee on the 27th February 1947, I have the honour
to submit this interim report. It deals only with the question of fundamental
rights from the point of view of minorities; and we are submitting it at
this stage as we desire that our views should be taken into consideration
by the Advisoiy Committee which is meeting on the 21st to consider the
report of the Fundamental Rights Sub-Committee. We have not had the
time to consider other aspects of the minority problem—some of them of
vital importance. We shall endeavour to submit our report on these without
any avoidable delay.
2. We have examined the draft clauses on fundamental rights so’ely
from the point of view of minorities; and our recommendations are con¬
tained in the attached annexure. Several of these decisions were reached
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FRAMING OF INDIA’S CONSTITUTION
by a majority decision. Where, owing to the shortness of time, we have
been unable to make a specific recommendation, we have indicated the
point which we think requires further examination.
3. There are certain other fundamental rights which, from the minority
point of view, may have to find a place in the Constitution. We have
not had time to consider these points and they will be raised in the meet¬
ing of the Advisory Committee.
I have the honour to be.
Sir,
Your most obedient servant,
H. C. Mookherjeb,
Chairman, Minorities Subcommittee
ANNEXURE
RECOMMENDATIONS BY THE MINORITIES SUB-COMMITTEE
I
Clause 4 . There should be an addition made in the clause providing against
discrimination on the ground of religion, race, caste, language or sex in trading
establishments, public hotels and restaurants.
(2) Schools should be omitted from the purview of this clause and should be
treated separately. The second sentence of the clause should be redrafted as a
separate clause, and should read as follows :
There shall be no discrimination against any person on any ground of religion,
race, or caste in regard to the use of wells, tanks, roads and places of public
resort maintained wholly or partly out of the public funds, or dedicated to
use of the general public.
Clause 5. A note should be made in the same manner as in clause 14(1) to
make it clear that a proviso may have to be added to meet the claims of minorities
to special representation in the services.
(b) The word “that” should be substituted for “a” before “particular” occurring
in the last but one line of the clause.
(c) After the word “institution” insert the words “or the members of a governing
body thereof’.
Clause 6. After the word “penalty” insert the word “obligation”.
Clause 10. Sub-clause (e). The effect of this clause on existing legislation regard¬
ing criminal tribes should be examined.
Sub-Clause if). An amendment should be made to make it clear that lands may
be reserved for minorities, such as the Assam tribes. The expression “public interest”
may not be adequate for this purpose.
Clause 13. The Election Commission should be an independent quasi-judicial body.
Clause 16. This clause may be redrafted as follows :
All persons are equally entitled to freedom of conscience and the right freely
to profess, practise and propagate religion subject to public order, morality
or health and to the other provisions of the chapter; and that in Explanation
2 for the words “religious worship”, “religious practice” should be substituted.
Clause 17. The second para of this clause be redrafted as follows :
The right to build and maintain places of worship shall not be denied except
for reasonable cause.
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SUB-COMMITTEE ON MINORITIES
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The committee also accepted the following in principle, namely, that the location
of such places of worship shall not interfere with the freedom of any person to use
a public road without let or hindrance.
Clause 20 . This clause may be redrafted as follows :
Any property continuously used for public religious worship shall not be taken
or acquired by the State, save for necessary works of public utility on payment
of just compensation and with the consent of the parties concerned which shall
not be unreasonably withheld.
Clause 21. This clause may be redrafted as follows :
(a) No person under the age of 18 shall be made to join or profess any religion
other than the one in which he was born, except when his parents themselves
have been converted and the child does not choose to adhere to his original
faith;
nor shall such person be initiated into any religious order involving a loss of
civil status.
(b) No conversion shall be recognized unless the change of faith is attested
by a Magistrate after due inquiry.
Clause 30, Sub-clause 2. After “directions” add “including writs” and omit the
words “the writs” in the third line.
II. Fundamental Rights, Non-justiciable
Clause 35 t Sub-clause (7). For the word “persons”, “citizens” be substituted and
the clause transferred to an appropriate place among the justiciable rights, with a
proviso to make it clear that certain persons occupying high positions in the State
during their tenure of office may have to be subjected to special procedure.
Clause 39. This clause may be redrafted to make it clear that while a uniform
civil code for all citizens was eminently desirable, its application should be made
on an entirely voluntary basis.
HI. Cultural and Educational Fundamental Rights of Minorities which may be
incorporated in the appropriate places
(i) All citizens are entitled to use their mother tongue and the script thereof, and
to adopt, study or use any other language and script of their choice.
(ii) Minorities in every unit shall be adequately protected in respect of their
language and culture, and no government may enact any laws or regulations that
may act oppressively or prejudicially in this respect
(iii) No minority whether of religion, community or language shall be deprived
of its rights or discriminated against in regard to the admission into State educational
institutions, nor shall any religious instruction be compulsorily imposed on them.
(iv) All minorities whether of religion, community or language shall be free in
any unit to establish and administer educational institutions of their choice, and
they shall be entitled to State aid in the same manner and measure as is given to
similar State-aided institutions.
(v) Notwithstanding any custom, law, decree or usage, presumption or terms of
dedication, no Hindu on grounds of caste, birth or denomination shall be precluded
from entering in educational institutions dedicated or intended for the use of the
Hindu community or any section thereof.
(vi) No disqualifications shall arise on account of sex in respect of public services
or professions or admission to educational institutions save and except that this shall
not prevent the establishment of separate educational institutions for boys and girls.
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ADVISORY COMMITTEE PROCEEDINGS
April 21-22, 1947
[The Advisory Committee on Fundamental Rights, Minorities etc .
met for two days during April 1947, viz. on April 21 and 22. The
committee discussed the recommendations [Document No. 4(viii) ] made
by the Sub-Committee on Fundamental Rights together with the inte¬
rim report [see Document No. 5(ii)] of the Minorities Sub-Committee
thereon. Before the committee met, Alladi Krishnaswami Ayyar convey¬
ed to its Chairman his intention of moving certain amendments to
the clauses recommended by the Fundamental Rights Sub-Committee,
and Rajkumari Amrit Kaur intimated her opposition to certain
changes made by the Minorities Sub-Committee in the recommenda¬
tions of the Fundamental Rights Sub-Committee. The texts of the
verbatim proceedings ( uncorrected) and the minutes of the Advisory
Committee meetings of April 21 and 22, and two notes by Alladi
Krishnaswami Ayyar and one note by Rajkumari Amrit Kaur are
reproduced below.]
(i) A NOTE BY ALLADI KRISHNASWAMI AYYAR REGARDING
AMENDMENTS TO BE MOVED BEFORE THE ADVISORY COMMITTEE
April 19, 1947
I propose to move before the Advisory Committee the following amend¬
ments to the clauses contained in the annexure to the report* of the Sub-
Committee on Fundamental Rights:
(1) Delete clause 10 (d).
(2) Delete clause 11.
(3) Delete Explanation (2) to clause 15.
(4) Delete clause 28.
(5) For clause 30, substitute the following clause:
30. On a complaint being made by or on behalf of any person that he is
being unlawfully detained, the High Courts in the several provinces or
States and the Supreme Court shall forthwith enquire into the same and
may make an order requiring the person in whose custody such person
is detained to produce the body of the person so detained before such
•See Document No. 4(viii).
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ADVISORY COMMITTEE PROCEEDINGS
111
and such court shall thereupon order the release of such person unless
satisfied that he is being detained in accordance with law.
ALTERNATIVELY
Delete sub-clause (1) of clause 30 and for sub-clause (2) substitute the
following:
30. Without prejudice to the powers that may be vested in this behalf in
other courts, the Supreme Court shall, for the purpose of enforcing the
rights enumerated in clauses 1 to 29 supra, have the power to issue direc¬
tions in the nature of writs of habeas corpus , mandamus , prohibition,
quo warranto and certiorari, appropriate to the right sought to be
enforced.
(ll) A NOTE BY ALLADI KRISHNASWAMI AYYAR REGARDING THE
'FREEDOM OF RELIGION’ AND ‘EQUALITY BEFORE LAW’ CLAUSES,
April 20, 1947
FREEDOM OF RELIGION—TEXTS FROM OTHER CONSTITUTIONS
Swi zerland :
Art. 49
Liberty of conscience and belief.
U.S.A.:
First Amendment
Congress shall make no law abridging freedom of
religion.
Ireland:
Art. 44
Freedom of conscience—the free profession and
practice of religion.
Germany:
Art. 135
Liberty of belief and conscience.
Poland:
Sec. Ill
Professing their religion in public as well as in
private and performing the commands of their
religion or right in so far as it is not Contrary to
public order and morality.
Even the text of the Australian Constitution which runs in these terms
has given rise to considerable difficulties.
Sec. 116 : The Commonwealth shall not make any law for establishing
any religion or for imposing any religious observance, or for prohibiting
the free exercise of any religion etc., etc., [vide 67 Commonwealth Law
Reports, 116, pp. 124 to 127.]
COMMENTS ON THE AMENDMENT AS PASSED BY THE MINORITIES
SUB-COMMITTEE*
1. It may stand in the way of all social legislation and strike at legislation
already passed especially having regard to the wide language as to the effect
of any deviation from the fundamental rights guaranteed.
2. Practice would be wide enough to cover religious processions, cow¬
killing, music before mosques, etc. Instead of leaving it to the good sense
of the future legislatures and courts a constitutional guarantee may have the
effect of stereotyping and giving rigidity to existing practices.
•See Document No. 5.
212
FRAMING OF INDIA’S CONSTITUTION
EQUALITY BEFORE THE LAW
The reason for the omission :
Equality before the law is no doubt an essential principle of English
jurisprudence which has largely permeated British institutions wherever
they have been extended. It is in that sense that Prof. Dicey refers to it
and discusses the same. So long as it is merely a maxim or principle of
c omm on law there is a certain flexibility attaching to it and it can be
adopted by courts and legislatures to changing circumstances but when the
same is made a constitutional guarantee it is beset with difficulties. Every
law which violates this principle becomes invalid and will become subject
to the crucible of judicial review. The statute law of the country may have
to necessarily make a difference between infants and adults ( vide Juvenile
Offenders Act), between women and men ( vide factory and labour legisla¬
tion). The difficulty becomes all the greater when the right is not confined
to citizens but is extended to non-citizens. Whereas for certain purposes a
differentiation may have to be made between citizens and non-citizens. Even
under the existing law there are special enactments relating to foreigners.
There is no such general declaration in the Constitution of the United
States of America. The language used in the Fifth and Fourteenth Amend¬
ments is that no person “shall be deprived of life, liberty or property without
due process of law” (Fifth Amendment) and “nor shall any State deprive
any person of life, liberty or property without due process erf law nor deny to
any person within its jurisdiction the equal protection of the laws.” (Four¬
teenth Amendment)
EQUALITY BEFORE THE LAW—WHERE DOES IT OCCUR?
Germany: Art. 109 : ‘All Germans are equal before the law.’ Even here
it is confined to citizens.
U.S.S.R.: Even in Soviet Constitution it is equality of rights of citizens,
vide Art. 123.
Eire: Art. 40 : ‘All citizens shall as human persons be held equal
before the law.’ This shall not be held to mean that the State shall not in
its enactments have due regard to differences of capacity, physical and moral
and of social functions.
(HI) A NOTE BY RAJKUMARI AMRIT KAUR REGARDING THE ‘FREEDOM
OF RELIGION’ CLAUSE
April 20, 1947
I beg to submit my emphatic opposition to the revision by the Minorities
Committee of clause 16 of the report of the Fundamental Rights Committee.*
•See Document No. 4(iv).
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The matter was thoroughly discussed in the latter committee and the
words “free practice of religion’’ were deliberately omitted. It was felt that
they would not only be a bar to future social legislation but would even
invalidate past legislation such as the Widow Remarriage Act, the Sarda
Act or even the law abolishing sati. Everyone is aware how many evil
practices, which one would like to abolish, are carried on in the name of
religion, e.g., pardah, polygamy, caste disabilities, animal sacrifice, dedica¬
tion of girls to temples, to mention a few.
The propagation of religion is amply assured in clause 10 dealing with
freedom of speech and expression.
Since conversion by force or undue influence only is to be banned,
it follows that conversion of an adult to any religion by reason of convic¬
tion will be permissible.
Freedom of religious worship, freedom of conscience and free profession
of religion should really give to the individual and community all he or it
needs.
The clause, as revised, is also going to make it extremely difficult for
the State to ban religious meetings or processions that may be adjudged to
lead to communal strife or public disorder. Such bans may be defied on
the plea that they are an encroachment on fundamental rights and endless
litigation may ensue. I am informed that the right to religious processions
has in fact been the subject of litigation in courts right up to the Privy
Council.
To make the “free practice of religion” a justiciable right is. I submit,
an error and will defeat not only social progress but will keep alive com¬
munal strife.
There are other points in the Minorities Committee’s Annexure to which
I am opposed but I will raise these as they come up for discussion in the
Advisory Committee.
(IV) PROCEEDINGS OF THB MEETINGS OF THE ADVISORY COMMITTEE
April 21-22, 1947
The Advisory Committee met in the Council Chamber of the Council
House in New Delhi at 10 a.m. on April 21, 1947. Sardar Vallabhbhai Patel
was in the Chair .
Chairman: Friends, we are now meeting today to consider the report
of the Fundamental Rights Committee which has been received and, I
think, circulated also as amended. 1 see that the committee has devoted
considerable time and labour and it has worked hard on it. May I suggest
one or two points for your consideration before we begin to discuss clause
by clause in detail the rights that are recommended by the committee? The
committee has recommended a very elaborate set of rights and clauses for
adoption or for your consideration. But I feel that it would be better if
15
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FRAMING OF INDIA'S CONSTITUTION
we confine ourselves or restrict ourselves to the rights which are actually
considered necessary, more or less according to law, and not go into
detailed description of theoretical rights which are not enforceable at all.
I only make suggestions for your consideration. The other point which is
more important and which I ask you to consider is that we have not yet
come to a stage when final decisions have been taken, whether the League
will come into the Constituent Assembly or not; not that I propose to
suggest anything to divert consideration, but we are now for the present
proceeding on the assumption that the Cabinet Mission’s Statement, the
basic Statement, governs our consideration of fundamental rights in the
Constitution so far as possible. Therefore it is necessary to take into
account that any clause that may be regarded as involving a major communal
issue or communal issues, which may be considered as very important, will
not be taken for the time being, because in all major communal issues,
according to the document of 16th May, we have not to decide by a majority
of votes, but by agreement. Therefore any decision which we may take
should not be such as will give the excuse to anybody to say that we have
closed the doors. We have yet to be careful to see that we take no decisions
on such questions as may be regarded by people who are not represented
here as a hostile act or as an act which will prevent them from coming
in. I therefore would suggest that we may consider those funda¬
mental rights which are absolutely essential as more or less not encroach¬
ing on the field of communal considerations, so that we may avoid any
misunderstanding. Now, I suggest that we may proceed with the considera¬
tion of the report clause by clause.
P. R. Thakur: For how long are we to wait?
Chairman: Till the 28th of this month when the Constituent Assembly
meets. By that time we will know. The only object is, supposing the League
comes in, the decisions that we may take are binding on us and not on
them, and we may have to reopen the whole thing.
Syama Prasad Mookerjee: There is one important question arising out
of justiciable rights. The main idea is that any of these rights can be
taken to the Supreme Court. You have stated rightly that we should be
careful in taking decisions on vital matters. This very question is likely
to be challenged by the Muslim League. They will ask why there should
be a right regarding the administration where they are in a majority, where
the affected citizen should have to go to the Supreme Court under the
Union Government. If you say that that very question should not be decided
now, that means practically...
Chairman: Which very question?
Syama Prasad Mookerjee: Whether there should be justiciable rights
at all for which you may go to the Supreme Court.
Chairman: So far as the fundamental rights are concerned, there is a
provision in the May 16th Statement itself.
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Sycuna Prasad Mookerjee: If it raises a major communal issue, they
said that it should be decided by agreement. Supposing we take this to
the Constituent Assembly and in the absence of the Muslim League we
decide that there must be justiciable rights, which may be taken to the
Supreme Court, there may be a major conflict.
K. M. Munshi: We shall not deal with any right which will involve
any major communal issue.
Raj Krushna Bose: May I point out one difficulty? Some of us received
the report last night; we have not been able to go through it. If, along
with the clauses, we are going to consider the minutes of dissent, I am
afraid we have not had the time to go through them.
C. Rajagopalachari: The members who have given the minutes of
dissent will be here and explain them.
Chairman: Let us take up clause by clause. If any member finds it
difficult to give his opinion at the moment, without further consideration,
we shall consider at that time.
Let us take up clause 1. I understand that there is no difference of
opinion.
P. R. Thakur: If we have defined “Union”, we must define “units”
also. We should say, “Units mean Provinces or States.” This should also
be inserted.
K. M. Munshi: It is not necessary to do so. We have used the word
“State” in different clauses for the Union as well as the units. Union means
the Union of India. Units mean the constituent units. All this will be
defined in the interpretation clause of the Constitution Act. This definition
has become necessary here so that it may not be misunderstood. The Consti¬
tution Act will be framed at a later stage.
Chairman: We need not now go into the technical drafting. We will
appoint a committee of technical people to draft, if we agree in substance.
P. R. Thakur: Another thing. The definition says, “State includes
legislature and governments”. Government includes the executive, legisla¬
ture and the judiciary. I do not understand why governments have been
mentioned separately.
Alladi Krishnaswami Ayyar: It is possible also there is confusion under
existing conditions between the legislature and executive. There are States
in which there is confusion of functions.
C. Rajagopalachari: This definition is only to understand our docu¬
ment.
Chairman: Shall I take it that clause 1 is accepted? (With the
concurrence of the House) Clause 1 is accepted.
We will take up clause 2.
K. M. Munshi: Before clause 2, Part I begins. The words “under this
Constitution” are wider than Part I in the sense that non-justiciable rights
are guaranteed.
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C. Rajagopalachari: Do you suggest that the words “in this part” will
do?
P. R. Thakur: In clause 2, does it cover also executive orders having
the force of law?
C. Rajagopalachari: Of course.
K. M. Panikkar: This clause should be read together with the recom¬
mendations in the report. There is a clause in the report which deals with
this.
C. Rajagopalachari: This is a general principle which will be kept in
mind certainly when the whole constitution is drafted. We need not make
it a formal part of this. We have not considered the effect of all legislation.
It will be dangerous to say that all laws inconsistent with this should be
deemed abrogated. This will be kept in mind when the Constitution is
framed.
Chairman: Do you suggest that instead of a separate clause, it should
go as a separate recommendation in the report in connection with clause 10
so that when the Constitution is being drafted this may be kept in view?
C. Rajagopalachari: This is even superfluous.
Alladi Krishnaswami Ayyar: Following constitutional precedents, we
should make it quite clear. I do not object to what C. R.* stated, that the
exact formula that has to be adopted may be considered later.
K. M. Munshi: There are various clauses in different constitutions
which enact that justiciable rights abrogate all laws to a certain extent.
That must be made clear.
Chairman: In substance, we are agreed that some sort of provision
should be made in the Constitution. But as we have not at present fully
considered all the existing legislation, it would be better to keep this out
from the clause on fundamental rights and keep it as part of our recom¬
mendation.
B. R. Ambedkar: That will not be satisfactory from my point of view.
I regard it as of profound importance that both usages and laws should be
abrogated by the constitution. Therefore, what I submit is this. There is
nothing wrong in retaining this as it is, provided we also carry over the
recommendation made by the Minorities Committee to the Constituent
Assembly, that it will still be open to the Constituent Assembly or for the
President to appoint a separate committee to examine the effect of this on
certain existing laws and usages. When the committee reports that certain
laws shall have to be retained notwithstanding the desire of the Fundamental
Rights Committee and the Constituent Assembly to guarantee fundamental
rights, we should then be in a position to make a proviso as we have made
in various clauses. You will see we have given the fundamental rights in
absolute terms and then we have qualified them by saying provision will be
*C. Rajagopalachari.
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made. I think that would be the proper procedure. From the point of view
of the minorities particularly the Scheduled Castes, this is a very important
fundamental right.
C. Rajagopalachari: We may add a note to clause 2 that a committee
should be appointed to study this.
Chairman: Is it agreed in substance that some sort of fundamental
right is necessary?
Alladi Krishnaswami Ayyar: As we proceed, we shall see that after
all there are not very many laws to be investigated. Most of them will be
provisions of the Penal Code and the Civil Procedure Code.
C. Rajagopalachari: We may add a note to clause 2 in terms of the
last sentence of page 13 of Sardar Panikkar’s note.*
Chairman: So we add a clause.
C. Rajagopalachari: Yes, at the end of clause 2. in terms of the last
sentence on page 13 of Mr. Panikkar’s note.
Chairman: Dr. Ambedkar, do you agree?
Ambedkar: I agree.
Secretary: Clause 3: “Every person born or naturalized in the Union
and subject to the jurisdiction thereof shall be a citizen of the Union.
Further provisions governing Union citizenship may be made by the law
of the Union.”
K. T. Shah: This does not cover the case of a married woman who,
originally a citizen of the Union, marries a non-citizen, and yet desires to
retain her citizenship. “Accrual, acquisition and termination”, I suggest, do
not include the right to retain her original citizenship.
C. Rajagopalachari: May I suggest that there will be many more
details like the one Professor Shah has suggested, and that these will be
covered by the last sentence, “Further provisions governing Union citizen¬
ship may be made by the law of the Union”?
K. T. Shah: I have already stated that this is a fundamental right and
therefore superior, if I may say so, to the ordinary laws.
K. M. Munshi: I think personally that trying to particularize would
land us in a lot of difficulty.
Alladi Krishnaswami Ayyar: The option may be given to the married
woman. If an Indian lady marries a European citizen, you cannot force
Indian citizenship on that lady if she wants to renounce her Indian citizen¬
ship and become a citizen of another State. The law must provide for it.
Syama Prasad Mookerjee: It says, “Every person bom or naturalized
in die Union shall be a citizen of the Union.” Here does Union include the
units? Can we say, ‘of the State’?
K. M. Munshi: The American Constitution says, “he shall be a citizen
of the Union and the State in which he resides”. You cannot say ‘State’
*See Document No. 4 (ix).
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FRAMING OF INDIA’S CONSTITUTION
because that would mean that a citizen of Delhi automatically is entitled
to citizenship rights of Madras and Bombay. That is not possible.
K. M. Panikkar: There are two sets of things provided here. One is
citizenship rights erf the Union which carry with it a corpus of rights. I
was bom in Travancore and I have certain obligations and certain rights
there which do not override my citizenship of the Union. The Union citizen¬
ship confers on me certain rights but I may have my limited rights and
obligations in the State or the province where I was bora. Therefore we
cannot say ‘of the State’ especially when you say that the State includes the
legislatures and the governments of the Union and the units and all local
or other authorities within the territories of the Union.
Chairman: We cannot prevent a unit from having its own separate
fundamental rights. Here we are talking of rights which, wherever a citizen
goes, he can enforce in a court of law. It does not necessarily include all
the rights of the units.
Alladi Krishrtaswami Ayyar: I am afraid there is some confusion. It
is one thing to say that there shall be one citizenship for the whole of the
Indian Union. What exactly are the rights and privileges in particular parts,
for example, with regard to franchise and other things is an entirely different
thing. We are talking of fundamental rights which are common to every
citizen of the Indian Union. It may be that certain qualifications may be
added to citizenship within a particular tract, but there shall be only one
citizenship.
Chairman: As a member of the unit, he may have any rights. As a
member of the Union, he has got some uniform rights all over India.
Alladi Krishnaswanu Ayyar: Citizenship does not carry any particular
political or other rights erf any particular unit.
R. K. Sidhwa: Sir, I would like to add, “Naturalized means a person
who is not bora in the Union, but has been in the Union for 10 years
and more.” He only shall be entitled to the right erf citizenship of the
Union.
C. Rajagopalachari: We can say, “naturalized according to law.”
Tek Chand: “Naturalized in the Union according to the law’s of the
Union.”
C. Rajagopalachari: The second clause may then be omitted.
Secretary: The clause will read thus : “Every person born or natura¬
lized in the Union according to the laws of the Union and subject to the
jurisdiction thereof shall be a citizen of the Union.”
Chairman: We can say, “Every person bom in the Union or natura¬
lized in the Union according to its laws, etc.”
Now we shall go to clause 4.
Secretary: “4. There shall be no discrimination against any citizen on
grounds erf religion, race, caste, language or sex. In particular, there shall
be no discrimination against any person on any of the grounds aforesaid
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in regard to the use erf wells, tanks, roads, schools and places of public
resort maintained wholly or partly out of public funds or dedicated to the
use of the general public.”
Secretary: The second sentence of the clause should be redrafted as
follows :
There shall be no discrimination against any person on any ground of
religion, race, or caste in regard to the use of wells, tanks, roads and
places of public resort maintained wholly or partly out of public funds
or dedicated to the use of the general public.
The educational clauses are intended to be dealt with separately.
Rajkumari Arnrit Kaur: I prefer the original as it appears, provided
that nothing in the clause shall prevent public institutions or places of
recreation being set apart solely for women. I should like schools to remain
as it is, because we do not want places of public resort for women to be
excluded.
Secretary: I forgot to add one thing. Sir. The Minorities Committee
also said that there should be an addition made in the clause providing
against discrimination on grounds of religion, race, caste, etc., in trading
establishments, public hotels and restaurants.
K. M. Munshi: The Minorities Committee’s report would result in
this. Sir, if accepted, that clause 4 would be divided into three
parts.
(a) There shall be no discrimination against any citizen on grounds of
religion, race, caste, language or sex,
(b) There shall be no discrimination against any person on any
ground of religion, race or caste in regard to the use of wells,
tanks, roads, schools and places of public resort maintained wholly
or partly out of public funds or dedicated to the use of the general
public, and
(c) Another sub-clause.
The difference is this, that schools and sex are omitted. It would be
very necessary to keep them in this form so as to allow separation of girls
from boys in schools, in public resorts, parks etc.
Alladi Krishnaswami Ayyar: One will clash with the other.
C. Rajagopalachari: According to the plan of the Minorities Committee
Report
Chairman: In the clause that you propose the word ‘sex’ is there.
C. Rajagopalachari: Because that deals only with discrimination. In
the second clause where we deal with wells, tanks, roads and schools and
public resorts, we have provided that there shall be no discrimination on
grounds of religion, caste or race. Then with regard to trading establish¬
ments, such as hotels, eating houses, restaurants, it was thought that we
should provide for non-discrimination in respect of them as a very impor¬
tant measure. So clause (c) should provide for that. That is their proposal.
These clauses are taken over to another place and along with many other
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FRAMING OF INDIA’S CONSTITUTION
matters in connection with education provision is made there. That is their
{dan. Clause (c) is in the report.
Secretary: Hie substance of it is that it should provide against dis¬
crimination in trading establishments, public hotels and restaurants.
Alladi Krishnaswami Ayyar: I am afraid I cannot accept it. This is
the trouble which I feel. You make a general statement at first that there
shall be no discrimination against any citizen on grounds of religion, caste
or sex. If that is so, in no sphere of activity there shall be any discrimination.
That is the main principle of that first clause. Then you give an illustration
of that principle in particular having regard to the exigencies of the Indian
situation. This is merely an illustration of the general principle of that
clause. If what Rajaji states is carried out, you first make a general state¬
ment to the effect that there will be no discrimination against any citizen
on grounds of religion, race, caste or sex. That is a fundamental principle
applicable to every sphere of a citizen’s activity. Then you go on providing
for differentiation for independent classes. I suggest that the present clause
be retained and if you want to safeguard any differentiation in any parti¬
cular matter you may include a proviso that there is nothing to prevent
discrimination being made in particular spheres, because the universal
principle that is recognised is that there shall be no discrimination. The
exception to that rule is that in particular matters having regard to the exi¬
gencies of the Indian situation, there might be discrimination. In a chapter
of fundamental rights, I am very particular that a general non-discrimina¬
tion clause must occur in the forefront. Then the exception must occur.
C. Rajagopalachari: The trade establishments have not been included.
Chairman: In the committee’s draft, there are two clauses in clause 4.
K. M. Panikkar: Before we go on to that may I suggest that the word
‘language’ be embodied in the substantive clause? We may say that no
discrimination shall be made on the basis of language. That I think. Sir,
creates an enormous number of problems because in various areas discri¬
mination may have to be made.
K. M. Munshi: When the clause was drafted various considerations which
arose in the Minorities Committee were not before the Fundamental Rights
Committee. What we did was to put the general proposition and then went
on framing clauses, because as we examined the different conditions we
found that sweeping discrimination was not likely to take place. These
clauses will have to be reconstituted into one single article which is con¬
sistent. First of all we say, we take them as they are. No discrimination
whatever on grounds of religion, race, etc. Then connected with this is clause
6. This, really speaking, ought to be part of the same thing that “notwith¬
standing any enactment, regulation, judgment, order.by which any
penalty, disadvantage or disability is imposed upon or any Other discrimi¬
nation is made...shall cease to have effect.” Therefore this would mean
that no discrimination will be recognised if it has taken place in the past
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or hereafter. Then we found difficulty about language. This in particular
was omitted because we found that there was a fundamental principle
involved that there are denominational schools for which we are providing
elsewhere and which are to be state-aided and for this purpose discrimination
may be required. Therefore we put them in a separate clause. Therefore
we had to omit schools for that purpose. No disqualification would arise
on account of sex in respect of educational institutions except this that it
shall not prevent the establishment of separate educational institutions for
boys and girls. Therefore we took education out of this altogether. We have
kept public {daces of resort, tanks, wells etc. in this clause. Then with
regard to employment, we have clause 5. With regard to education and
schools, we have got a separate set of clauses. In public employment we
found that reservation may have to be made for the minorities. When we
began to examine, we found that some discrimination either in favour of
religion or in favour of denominational schools or in favour of sex or some
classes will have to be accepted. Therefore the first sweeping generalization
is practically inapplicable to the whole class. I submit. Sir, that all these
clauses may be considered at one {dace and examined if necessary by a
small committee and brought out into one coherent form. For instance,
Sandar Panikkar has brought several points to the fore in his dissenting
minute about public employment. That means that in public employment
we have four or five discriminatory clauses in favour of minorities or some¬
thing in education. We must consider these particular group of amendments
at one place either by a small sub-committee or by the whole House.
Alladi Krishnaswami Ayyar: Is this a chapter on fundamental rights
or is it a chapter of discriminatory provisions? Let us be quite clear on
that point As to how exacdy the clauses have to be arranged, I have
nothing to say. If you are agreed that the main principle of this Union
should be non-discrimination that must find a {dace in the forefront. By
all means, whether in respect of this particular aspect or the other you may
have your discrimination, but on the other hand if every clause must be
a discriminatory clause, far from being a chapter on fundamental rights, it
will be a chapter of how to perpetuate discrimination in this country. You
may have all protection to minorities, you may have all protection
to any particular class, but this fundamental principle that there
shall be no discrimination on account of race or colour among
the citizens of this Union must be placed in the forefront. You may by all
means on account of the exigencies of the Indian political and social
situation make any kind of restriction you please, but I do think that in
respect of this fundamental principle it ought to find a place. If an institu¬
tion gets a grant in aid from the government or the legislature of this
country it cannot afford to be a denominational one. Let us clearly face
this matter. There are a number of endowments in every part of India, for
particular people and for particular classes. A distinction has to be drawn.
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FRAMING OF INDIA'S CONSTITUTION
in the case of publicly aided institutions. If you get support from the State,
whether it is wholly or in part, you shall not draw a distinction between
class and class. There are differentiations made, for example, when you
want to have a certain proportion for the depressed classes. By all means
have it. But they must be treated as an exception of the fundamental
principle recognised, namely that there shall be no discrimination subject
to this... In the draft changes may be made. It is well that we are quite
clear on this fundamental and universal principle.
Chairman: I think this is fairly controversial. A small committee of
five or six may be formed to go into this.
K. T. Shah: Discrimination is generally used in the sense of discrimina¬
tion against. It does not mean discrimination in favour of a special advan¬
tage. Apparently there is a confusion. All the instances that I have heard
were instances of some special advantage. It is not discrimination against
anybody.
C. Rajagopalachari: A small committee may be appointed. The only
thing is that we had thoroughly discussed this in the committee and we got
it agreed to by all. It may be uneconomic to waste the time if as a result
of your appeal all of us are agreed to condense the matter and not go
into too much of detail. I shall suggest a very small draft immediately if it is
acceptable. We do not require a committee. “There shall be no discrimination
against any citizen on grounds of religion, race, caste, language or sex.”
The only thing to be provided is beneficial provision for some. “Pro¬
vided that this shall not prevent any provision being made for the conve¬
nience of particular classes like women or backward groups.”
B. R. Ambedkar: Provision can be made this way. Clause 4 may start
like this : “Subject to the provisions hereinafter following, there shall be
no discrimination against any citizen on grounds of religion, race, caste,
language or sex.”
K. Af. Munshi: I entirely agree with Dr. Ambedkar. If Dr. Ambedkar’s
draft is accepted, it will meet the point. We can then put down all the
exceptions.
K. M. Panikkar: C. R.’s draft provides for exceptions being made for
the benefit of certain classes.
K. M. Munshi: My objection to that is that the exceptions are not
necessarily in favour of the backward classes, but in favour of certain
minorities. I am only asking to lump them all together.
M. Ruthnaswami: It will look better if we have a universal rule sub¬
ject to certain reservations. Let us state the universal rule, “there shall be
no discrimination... provided that provision can be made...”
Chairman: Supposing the clause suggested by C. R. is accepted, the
general proposition comes first. The general proposition is there. Now, in
the second part, he suggests a condensation of all the exceptions that have
been suggested in one small clause. He has condensed them all.
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K. M. Murtshi: Provided all these points are condensed. They are not.
Chairman: Mr. Ruthnaswami’s suggestion could be accepted: “There
shall be no discrimination against any citizen... provided that provision
may be made...”.
B. R. Ambedkar: If the proviso comes in the beginning or in the end,
that is a matter of form.
K. M. Munshi: The different clauses for protection of minorities must
be considered and discussed, and accepted. Drafting is a small thing.
Many Members: A committee would be better.
Chairman: I suggest C. R., Dr. Ambedkar, Panikkar, Hansa Mehta,
Munshi.
A Member: S. P. Mookerjee.
Another Member: Ujjal Singh.
P. K. Salve: This is an advisory committee. After full consideration
certain proposals have been made. If we want a drafting committee, two
would be quite sufficient for drafting.
Chairman: The committee will consist of Mr. C. Rajagopalachari,
Dr. Ambedkar, Sardar Panikkar and Mr. K. M. Munshi. The draft will come
here and if the draft is not acceptable, you may express your views.
We will take up clause 5.
A Uadi Krishnaswami Ayyar: So far as the second part of this clause
is concerned, this is merely a reproduction of the present section 298 of
the Government of India Act. It was my friend Mr. Munshi that was very
particular about the affirmative part of it in the committee. It is merely
the second part of it, there need not be any trouble. I am referring to section
298 of the Government of India Act. This is merely a reproduction of that
section. The further addition is the first two paragraphs. This need not
again go to the committee.
K. M. Munshi: You were not in the Minorities Committee. Certain
clauses have been added by the Minorities Committee to this clause, reser¬
vation for minorities. Doubts were raised in regard to this clause.
Alladi Krishnaswami Ayyar: The minorities would have no quarrel at
all if we are not expressing it in the affirmative : “There shall be equality
of opportunity few all citizens in matters of public employment, in the
exercise or carrying on of any occupation, trade, business or profession.”
Once you start with the affirmative, the Minorities Committee comes for¬
ward with their special provisions. If you merely take the present section
298 of the Government of India Act which is expressed in the negative
that would be alright. Section 298 must be bodily reproduced. This section
has not stood in the way of the Governments passing the communal propor¬
tion rule in Madras, Bihar, etc. This has worked alright. The method
that is adopted is, you first say that there shall be equality of opportunity
for all citizens provided there shall be no equality of opportunity. This does
not mean equality. I am against the method of drafting. We must keep
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section 298 in its present form. We have got this advantage that the section
has already worked well. The first part of paragraph 5 (i) and (ii) should
be deleted.
K. M. Munshi: As a matter of fact, we had two days’ discussion on
this point and my learned friend is now starting it all over again. The
Fundamental Rights Sub-Committee was of the view that the clause re¬
garding equal opportunity to all must be asserted in the affirmative. We
are dealing with fundamental rights and so we must define the right of
equal opportunity for public employment etc.
The second part of the clause has been so worded that nobody has been
able to complain against it. No provincial government has made any
complaints. Everyone is entitled to equal opportunity. We make some
exceptions in favour of backward communities, but the general principle to
be accepted is that of equal opportunity. Almost every provincial govern¬
ment has been making rules shutting out even eligible people from cer¬
tain offices, in spite of this clause. The sub-committee feel that we must
put the positive side first and then put in the negative clause, otherwise
it will be a dead letter.
B. R. Ambedkar: Sir, I would first of all like to draw attention to
the second part reading—“...no citizen shall on any of the grounds men¬
tioned in the preceding section be ineligible for public office or be prohi¬
bited from acquiring, holding or disposing of property or exercising or
carrying on any occupation, trade,...”. The reason why I want to
stress this part is this. We have in several provinces—I do not want to
name them—laws prohibiting specific communities from holding property.
To give an illustration, there is the Punjab Land Alienation Act by which
the whole Scheduled Castes population has been prohibited, including
certain Hindus. I want every such legislation nullified by this clause in
the fundamental rights. That is the reason why we have insisted upon
its inclusion. i.e. the words “holding or disposing of property, etc.” There¬
fore, from our point of view, this is very essential.
Secondly, I do not understand why it will not be possible to provide
for reservations in favour of certain minorities. We already have the part
“Nothing herein contained shall prevent a law being made prescribing
that the incumbent of an office to manage, administer or superintend the
affairs of a religious or denominational institution shall be a member of
a particular religion, persuasion or denomination.” I personally do not
see why it is not possible to add a further clause : “Nothing herein con¬
tained shall prevent the Government prescribing a certain proportion of
posts of public service for the minorities”—whoever they may be. Even
among the members of the same minority there may be complaints of
partiality, of provincial favouritism or personal favouritism. I have often
heard the complaint that all the posts for the Muslims go to the Punjab
Muslim and few to the Madrasi Muslim. Even among the minorities, we
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want equality of opportunity. I cannot see any substance in the objection
raised by Sir AlladL
Alladi Krishnaswami Ayyar: I have no objection if it is put in as
an exception, provided the exception does not eat up the rule.
Chairman: Let me tell you one thing. Clauses of this nature would
only be applicable if there is one Union of the whole of India, provided
the May 16th document stands as it is. But supposing the Muslim League
insists on a division of the country and wants a portion of the Punjab and
a portion of Bengal, in those areas these fundamental rights will not
apply. The Land Alienation Act and such other Acts will stand there. If
there is to be one Union, there will be no difficulty; but we shall have to
take into consideration the possibility of the League not coming in, when
framing our fundamental rights.
B. R. Ambedkar: Whether they come or not, these Fundamental
Rights will be useful for the ‘willing areas’—to use the technical expression.
If they come in, it is all right. If they do not come in, we shall have to
open negotiations and enter into some sort of reciprocal arrangements.
K. M. Panikkar: I shall read out what I have said in my note, on
page 4 “Article 5 states that there shall be equality of opportunity...’’ and
the provision may be declared ultra vires by the courts. Therefore I think
this clause requires certain consideration before we accept it as it stands
but I am against the principle that public employment should be the
right of every person. There are two points, one is in the Union and the
other is in the unit.
B. R. Ambedkar: Notwithstanding the fact that we have declared that
everybody who is bom or naturalized in the Union according to the law
of the Union. I do not think this will prevent any unit from prescribing
additional conditions for that unit.
K. M. Panikkar: Fundamental rights override all local conditions,
and can be enforced in a court of law.
B. R. Ambedkar: In the West, for example, I don’t think a clause
like this has prevented the respective States from imposing certain additional
obligations required in their own interests.
C. Rajagopalachari: This may mean that every unit can trespass into
every other unit for public employment. If this is going to mean that there
shall be no reservations made in favour of the people of any particular
unit, this will be objected to all round. Therefore this may require modi¬
fication.
Ujjal Singh: I submit that this may be referred to the Drafting
C ommi ttee. 1 think the Drafting Committee might come to some sort of
agreement.
C. Rajagopalachari: If it is only a question of merely drafting, we
can refer it to the committee. I think we are all agreed—and I am putting
it for acceptance—that we should not attempt to supersede the rights of
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particular provinces or units to impose any additional qualifications.
K. M. Panikkar: Once you agree on the principle, it is merely a matter
for drafting.
Chairman: Then we refer it to the same committee.
Clause 6.
That too hangs on 4. We refer 4. 5 and 6 to the same committee.
Secretary: 7. “Untouchability” in any form is abolished and the practice
thereof shall be an offence.
P. R. Thakur: This clause is rather very vague. It cannot possibly
mean untouchability in any form. I can tell you definitely that to a Hindu,
a Mohammedan or Christian is an untouchable and they will remain un¬
touchable till doomsday. I think what is meant is untouchability within the
Hindu fold.
Chairman: Do you mean to say that untouchability should be res¬
tricted?
P. R. Thakur: The question of untouchability is due to the disabili¬
ties erf certain sections of the Hindus.
Chairman: The idea here is that untouchability in any form should
be abolished.
P. R. Thakur: The Christian or Mohammedan does not care whether
he is treated by a Hindu as untouchable or not.
Chairman: Do you mean to suggest that so far as Christians or
Mohammedans are concerned, untouchability should be retained?
P. R. Thakur: I do not mean that.
Chairman: But your suggestion will result in that.
K. M. Panikkar: You are probably well aware that there are some Chris¬
tians who suffer from the same disabilities as the Hindu untouchables.
That is to say, depressed classes who have been converted to Christianity
in Travancore, Cochin and Malabar in the South.
Jagjivan Ram: What is meant is that untouchability in any form is
abolished. Untouchability in the ordinary sense of the term is untouchability
as it prevails in the Hindu society. The intention here is untouchability
between Hindus and Hindus, between Hindus and Mohammedans or bet¬
ween Hindus and Christians. We must be clear about the aim of this
committee; whether it is to abolish untouchability amongst the Hindus,
among the Christians, among the Muslims, and among the Sikhs, whether
the intention is to abolish inter se untouchability among the various com¬
munities or whether it is to abolish inter-communal untouchability. I want
to be clear and the committee must know its object.
Chairman: As far as I can understand it is to abolish untouchability of
all forms.
K. M. Panikkar: It is the various disabilities arising out of untouch¬
ability, that is the object we have in mind. If somebody says that he is not
going to touch me, that is not a civil right which I can enforce in a court
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of law. There are certain complex of disabilities that arise from the prac¬
tice of untouchability in India. Those disabilities are in the nature of civil
obligations or civil disabilities and what we have attempted to provide for
is that these disabilities that exist in regard to the individual, whether he
be a Christian, Muslim or anybody else, if he suffers from these disabilities,
they should be eradicated through the process of law. If that can be
drafted in a better form, we have no objection.
Jagjivan Ram: The scope of this clause is very much narrowed down
and then we say that all disabilities arising out of untouchability are
abolished.
H. C. Mookherjee: This untouchability clause may remain as it is.
Alladi Krishnaswami Ayyar: I am rather surprised at the position taken
by our esteemed friend. Does he want to retain untouchability in any
particular form?
C. Rajagopalachari: I think we are all agreed as to the substance and
only slight amendment in language is needed in order to meet some of
the points brought out. Untouchability in any form is abolished. A question
is asked by Mr. Jagjivan Ram as to what it means. I submit there is a
very definite legal meaning to it, namely that law will not hereafter
recognise untouchability in any form as bringing into existence any right or
disability. Therefore untouchability in any form is abolished is a useful
thing. It is well known that customs are respected in lands and therefore
this custom is not to be respected hereafter. I would suggest that the
imposition of any disability of any kind of any such custom of untouchabi¬
lity shall be an offence. I think that will meet all objections.
Chairman: We now come to clause 8.
C. Rajagopalachari: I suggest that we might omit the first para of
clause 8 and keep only the second and my reason is this. We are only
dealing with fundamental rights but here we are suggesting a policy which
may or may not be accepted later on when drafting the whole Constitution;
whether there should be titles or not is not a fundamental right. “No
citizen of the Union and no person holding any office shall receive a
foreign title” is quite within our rights. I would suggest that it should be
left open to us and to the people in the legislatures to decide from time to
time whether titles are good or titles are bad for this reason. Supposing
we have a national policy, a communist policy or a socialist policy and
the private motive is removed, there is a very great necessity for making
a new motive for people to act loyally to the State and it is not outride
the socialist programme to accept titles of some kind and to give titles
of some kind. I suggest therefore we do not prescribe a policy of no
titles, but we prescribe a policy that no one in India shall receive a
tide from an outside authority or power. Hitherto the mentality against
titles has been developed owing to their foreign character. I suggest that
the first paragraph be omitted.
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K. T. Shah: The conferring of tides offends against the very funda¬
mental principle of this Constitution—equality of all citizens. It is for
that reason that in the Fundamental Rights Sub-Committee we introduced
the subject and it is provided for in other constitutions also. I also had
pressed in that sub-committee the particular aspect of heritable tides.
C. Rajagopalachari: I would have no objection to doing away with
heritable titles but the State should be free to give titles for. service
rendered.
K. M. Panikkar: The academic titles are excluded.
C. Rajagopalachari: When you make a fundamental law and if you
make a number of reservations, it will not operate properly. We shall not
have any profit motive in our society, and no competition in our society
on any basis. Supposing a man renders great social service, there is nothing
wrong in the State giving recognition and inducing others to follow his
example.
K. M. Panikkar: Orders and decorations are not prohibited. The
heritable tides by the Union undoubtedly create inequality. In the Soviet
Union many encouragements are given on account of certain national poli¬
cies. What I am submitting is that we must make a clear distinction bet¬
ween tides which are heritable and thereby create inequality and tides given
by governments for the purpose of rewarding merit or by recognising merit.
There are two methods that exist. As you know one is by tide and the
other by decoration. What we have to aim at i 9 really the question ot
heritable tides and we should see that provision is made for decorations
and various other things because it is only tides that have been prohibited,
not decorations and honours.
V. /. Muniswamy Pillay: I think it is necessary that we should put
in the words ‘all titles of nobility should be abolished’.
C. Rajagopalachari: I suggest that we consider that question in its
substance. Is it necessary for us to go into the question of policy or shall
we leave it to be decided in the Constitution either now or later and we
shall only restrict ourselves to the second part. I submit I have no objec¬
tion to a suitable amendment being suggested.
Alladi Krishnaswami Ayyar: I submitted to this clause as a result of
the passionate appeal made by Professor Shah in the Fundamental Rights
Committee. I am sure I raised objection to it. Tides denoting office or
profession are at present conferred by the Government. After all, they do
not serve any purpose. As a result of some pursuit of some knowledge,
he may make a great discovery. The Union may confer a title upon him.
That does not serve any useful purpose. I am for deletion of this para¬
graph.
M. Ruthnaswami: Equality is not opposed to distinction. Even in a
democratic society, you must provide for distinction.
K. T. Shah: I am prepared to accept the amendment “heritable tide.”
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Chairman: Am I to take it that the sense of the House is for deletion
of the clause ?
Jagjivan Ram: I would suggest that this may be deleted and we may
insert “public legal privileges or disadvantages of birth.”
Due to birth, certain people have privileges of hereditary titles.
K. M. Panikkar: Having provided for equality, I think heritable titles
have no place.
C. Rajagopalachari: I do not deny the correctness of the proposition.
We may leave it to the Union.
Chairman: Is it agreed that paragraph 1 may be deleted?
R. K. Sidhwa: This matter was discussed in the Fundamental Rights
Committee and the sense of the House may be taken.
Chairman: The proposal is that paragraph 1 be deleted. It is put to
the vote. (14 voted against deletion and 10 for deletion.) The clause is
retained.
K. M. Panikkar: Heritable is a word of chivalry arising from Euro*
pean conception. There should be no heritable titles. I move the amend¬
ment.
Chairman: (With the concurrence of the House) The amendment is
accepted.
Now, we take up paragraph 2.
leaped Singh: May I know. Sir, supposing a Nobel Prize is conferred
is it necessary to seek the permission of the Union?
C. Rajagopalachari: The answer to your question is, the consent of
the Union will be given in such cases.
Frank Anthony: What would happen if the Nizam of Hyderabad
accepted a title from the Egyptian Government?
C. Rajagopalachari: That depends on the definition of the term
“citizen of the Union.” He is an independent gentleman.
K. M. Panikkar: Even today, if a foreign title is to be accepted
by an Indian Ruler, he has to take the permission of the British
Government.
Frank Anthony: There is no provision tor permission. Here is a
bar.
K. M. Munshi: There is one drafting difficulty. The words are “con¬
sent of the Union.” They should really be “consent of the Head of the
Union.” Generally, it is the Head of the Union that gives such permission.
It may be amended as “Government of the Union.” or “Union Govern¬
ment.” (The amendment was accepted.)
K. M. Panikkar: I should like to bring in an amendment, that all
titles from a foreign Government previously accepted shall stand cancelled.
Many Members: We wholeheartedly support the amendment.
Chairman: (With the concurrence of the House) Paragraph 2 erf the
clause is adopted as amended. We take up clause 9.
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FRAMING OF INDIA’S CONSTITUTION
P. R. Thakur: I should like to suggest that the clause be amended
as “Hindustani, written either in the Devanagari or the Persian or the Roman
script at the option of the citizen.”
Chairman: This question may be kept over. This is likely to raise
controversies.
We take up clause 10. We may take up the preamble first
C. Rajagopalachari: In regard to the preamble, there are, I find, in
eveiy clause various provisions for allowing the law to come in the way
whenever necessary. Instead of that cumbersome and overlapping provi¬
sion, I would suggest that after the words, “public order and morality”,
the words “as regulated by laws and orders duly passed” be added. Other¬
wise, “public order and morality” would be vague even though they are
used in the Nehru Report. We must try to provide that laws and orders
duly passed with regard to public order and morality shall be binding.
If we accept this phrase, probably many of the subsequent clauses may
be condensed. The clause says, “There shall be liberty for the exercise
of the following rights subject to public order and morality.” I want it
to be amplified more specifically. “Subject to public order and morality,
as regulated by laws and orders duly passed.” If this is not accepted, you
will have to repeat it at the end of every clause in some form or other.
K. M. Munshi: The position is this. Governments may restrict the
exercise of rights. With reference to morality, governments may restrict
it mostly by laws. This is a well recognised phrase in all constitutions.
Trying to qualify that would create difficulty. Government’s right may be
fettered to some extent. Subject to public order means, whoever has autho¬
rity, either the legislature or the executive government which has the
right to maintain public order, will be the authority to regulate the rights.
If you put “law”, it could not be done by executive action.
All these will have to be brought before the legislature. For in¬
stance, libellous and defamatory matter is between one citizen and another
and there is no need for public order. This is a right in tort. So far as the
law of sedition is concerned, that meets with public order only because
when there is going to be a breach of the peace or outburst of violence,
before that stage it may become necessary to prohibit certain kinds of
expression of opinion which may be seditious.
C. Rajagopalachari: If there is serious objection, I do not press my
suggestion.
B. R. Ambedkar: After a great deal of discussion, we came to the
conclusion that this was the proper form. I would request that this may be
retained.
Chairman: The preamble is accepted.
B. R. Ambedkar: I would suggest a proviso somewhat different from
the present one, I mean, somewhat differently worded, for the sake of
symmetry of language.
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Just as the provisos to the other clauses, I would change this
proviso also to read: “Provision may be made by law to prevent
the publication or utterance of seditious, obscene, slanderous, libellous or
defamatory matter and to make such publication or utterance actionable
or punishable.”
A lladi Krishnaswami Ayyar: With regard to this clause about the
publication or utterance of sedition etc. I wanted to add the words “likely
to promote class hatred.” Most of these things enumerated are governed
by the Penal Code and we are only trying to put in a short compass the
various things contained in the Penal Code. I felt it is necessary to add
“class hatred” also because it does not actually come under “defamation”
or “sedition” or any of the other things mentioned, and people will have
a carte blanche to promote class hatred.
K. M. Panikkar: We may add “class or religious hatred.”
Alladi Krishnaswami Ayyar: Yes, we can do that. I have in my mind
sec. 153A of the Penal Code; I am not wedded to any particular expression,
I only want this to be brought out
Syoma Prasad Mookerjee: We did discuss this question yesterday, of
adding the words “class or communal hatred” and felt that it would be
dangerous to do so, because it may cut both ways. Even simple expression
of opinion against a party in power may be construed as class or com¬
munal hatred and punished accordingly; but if the majority party or party
in power does the same thing, they will not be brought to book.
C. Rajagopalachari: It is very wrong to be guided by what is happen¬
ing at some {dace due to a temporary policy, when framing the fundamental
rights. When we begin to do something, we should not allow our¬
selves to be led away by details. It is just possible that in trying to include
“class or communal hatred” into this clause, we may omit other important
matters. I therefore suggest, let us be more comprehensive and say “The
right of every citizen to freedom of speech and expression, subject to the
criminal law.”
K. M. Munshi: The right of free expression is now recognised all over
the world, and it has been felt that speeches or writings tending towards
communal or class hatred, if they do not go to the extent of causing
violence or crime, may be permitted. This is the case in all civilized
countries. The reason why “class or communal hatred” was omitted was
that it was felt this might permit the units to make all kinds of drastic
laws; and all constitutional experts are of the view that up to the point
where it leads to a breach of the peace or public order, any amount of
public expression should be permitted.
Chairman: If you put it in, then sec. 153(a) of the Penal Code is
nullified.
K. M. Munshi: Even today sec. 153(a) is in effect entirely deleted
from the Penal Code. No one knows better than you. Sir, that we cannot
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FRAMING OF INDIA'S CONSTITUTION
prevent powerful majorities from carrying on class hatred or communal
hatred. We have to permit it, till the stage when it affects the public order.
Alladi Krishnaswami Ayyar: Unless any utterance comes to the stage
of being a menace to public order, or a grave danger, there is nothing
legally wrong in permitting class or communal hatred, and sec. 153(a) of
the Penal Code pro-tanto stands repealed.
B. R. Ambedkar: I can quite understand that in grave emergencies
class warfare ought to be stopped.
Chairman: In normal times, speeches of individuals may create a situa¬
tion in which it may be necessary to take action as provided in section
153(a). But from what Sir Alladi says, section 153(a) stands nullified if
this provision is adopted.
C. Rajagopalachari: That is the object also.
K. M. Panikkar: These things stand on a different footing. Class
hatred may be needed for reorganization of society. As you know, the
whole socialistic philosophy i 9 based on the theory of class war. The
doctrine of class war must inevitably be based on the doctrine of class
dislike and hatred. Let us consider the actual issue which is vital here.
It is different from the class issue.
Bakshi Tek Chand: I think the clause as it stands should not be
amended. My experience shows that there is no section in the whole of
the Indian Penal Code which has been more abused by the governments
of the time than section 153(a). As you know, no action under section
153(a) can be taken unless sanction is obtained from the executive. Now,
when the bureaucratic government was there, sanction was given to prosecute
a certain newspaper simply because it wrote articles against the police. It
was argued and held that the police force was a class by itself and that
the newspaper was creating hatred against the police. The man concerned
was sentenced to two years’ rigorous imprisonment. This is about the class
part of it Again, when the members of the majority community write
against the minorities whether they are Hindus or Muslims, no sanction is
given. When the minorities write against the majority, sanction is given.
So, I say that as Dr. Ambedkar said, this should be limited only to occa¬
sions when there is grave danger to public order. I think the clause as
drafted should stand.
C. Rajagopalachari: The fundamental peace and orderly progress of
our country depend upon communal peace and harmony. If we do not
prevent speeches and utterances likely to foster communal hatred, we can¬
not have progress.
H. C. Mookherjee: We started a certain periodical in Bengal. As soon
as the first issue came out, unofficial warning was given to us that unless
we stopped, action would be taken under section 153. We had to stop
it. So, I am afraid that, so far as we are ooncemed, we do not feel quite
safe if we have a provision of that sort.
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P. K. Salve: We can say, ‘leading to violence.’
K. M. Munshi: That is covered by the words ‘public order.’
Chairman: This does not appear to be an easy matter to decide. We
can only decide it by vote. So we shall take votes on this now. We shall
take co mmunal hatred and class hatred separately. Those who are in favour
of Rajaji’s amendment will raise their hands. (Hie amendment of C. Raja*
gopalachari was lost. The original clause was passed).
C. Rajagopdachari: I have still a hope in spite of this vote against me that
we may be able to induce a reasonable Union to pass a law that communal
hatred shall be seditious.
K. M. Panikkar: The change suggested by Dr. Ambedkar covers our
friend’s point because provision may be made by law to do this.
Chairman: Then we come to 10(b) : The rights of the citizens to
assemble peaceably and without arms...
K. M. Munshi: Without arms they can meet and have a rioting. That
is why both words are necessary.
R. K. Sidhwa: I would suggest instead of ‘vicinity’ ‘precincts’.
C. Rajagopdachari: I should like to know whether they mean to give
any magisterial powers or not. I understand the law as it is provided to
mean that unless there is a legislative act passed against such a meeting
there may be no interference at any particular moment
K. M. Munshi: Even today the Magistrate interferes by virtue of the
law. It only means this. First of all the legislature passes a law authorising
the Magistrate to disperse the assembly or do something. When you say
by law, it means the whole state is not going to...
BaksM Tek Chand: I suggest for the consideration of the House the addi¬
tion of the words “or court of law” after ‘any chamber of legislature.’
C. Rajagopdachari: What about a municipal meeting? What is your
attitude about a municipal meeting? I therefore respectfully submit to you
that instead of trying to make detailed provisions of this kind in the funda¬
mental thing, we ought to stick to laws and reasonable orders. But if you
say legislature you are thinking of a court I am thinking of a municipal
meeting. In an administration or legislature there will be no breach of
peace or nuisance to the general public. They can only prevent the parti¬
cular body from deliberating. So these two clauses are entirely different.
As regards the first clause at any place, before a court or anything if it
is a nuisance the law can still stop it, but with regard to a chamber even
a peaceful meeting can be stopped, namely, nobody shall hold a meeting
even peacefully within the vicinity of the legislature. That is the meaning.
You have made provision for peaceful disturbance even of a legislative
meeting; you have made no provision for a peaceful trial being
carried. There are many others; a religious meeting may be held. You
should therefore provide a much more general clause than in this specific
form.
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K. M. Panikkar: The principle of this is. Sir, that after all the legis¬
lature represents the sovereign authority which governs the country and
any kind of demonstration highly objectionable but amounting to a black¬
mail of sovereignty has got to be prevented. Therefore I have no objection
if you make an exception in regard to that, but the rest must be governed
by general clauses.
B. R. Ambedkar: Rajaji’s arguments regarding trial is Simply nothing
but a reductio ad absurdum. I would like to keep the clause as it is in
view of what is happening in the country.
(Gause 10(c) carried without division).
Alladi Krishnaswami Ayyar: As regards clause 10 (d) I have a very
strong objection. May I point out that first of all we have got now in the
Indian Evidence Act the secrecy of correspondence which is protected
only in special cases? If we have this one then the result will be that if a
conspiracy of murder is going on, then the government will have no right
to look into it
K. M. Munshi : The clause is very clear as it stands. It is only after
the declaration of a public emergency and not before or in the interest of
public safety or tranquillity. If a conspiracy is going on it is not in the
interest of public tranquillity but in the interest of murdering a certain
number of people. This clause was coped from the American Constitution.
Yet in spite of this the Government can intercept anything.
Chairman: (The deletion of the clause was put to vote.) The deletion of
the clause is carried. Gause (d) is deleted. We take up clause (e).
R. K. Sidhwa : What about spies?
K. M. Munshi: This is subject to public order. It is provided in the
preamble.
Rajkumari Amrit Kaur : In the Minorities Committee it was suggested
that the law regarding the criminal tribes should be re-examined in the
light of thi9.
{The Secretary read the paragraph in the report of the Minorities Com¬
mittee: “The effect of this clause on existing legislation regarding criminal
tribes should be examined.”]
K. M. Munshi: That would be covered by the povision for public order.
C. Rajagopalachari: Hie idea is not to travel over the ground of suspec¬
ted characters and the like. But foreign countries required visas and so on.
Between the units inter se there should not be such a rule. Every citizen
should be free to go without any passport. If the language is not clear, it
may be altered.
K. M. Panikkar: The prohibition should only be in regard to certain
definite matters. Assuming we find that a goonda has to be stopped from
moving, this could be done on the ground of public order. So also, we
can order that a certain class of women shall not come on the ground of
morality. But I shall not be stopped from entering any State as I may
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at the present time unless it is specifically laid down that I am an undesir¬
able character and that my movement is likely to create disturbance. It
is not merely a question of moving about without visas. That is not the only
issue. The question is, it is not presumed that every member of the cri¬
minal tribes commits theft. A criminal tribe is created by definition. 1
think special provision is required in that case. The State can make the
necessary provision in regard to the movements of suspected tribes, etc.
C. Rajagopalachari: If ‘public order’ and ‘morality’ give the right to pre¬
vent the movement of certain persons, that would also apply to the criminal
tribes.
K. M. Panikkar: A criminal tribe is created by definition. It is not to
be assumed that every member of the criminal tribe is an offender.
C. Rajagopalachari: ‘Public order’ and ‘morality* would cover such cases.
Syama Prasad Mookerjee : “The right of every citizen to bear arms in
accordance with law.”
Chairman : Let us finish this clause. Shall we take it that the clause is
to be retained subject to the examination of its effect on the criminal tribes?
That is what the Minorities Committee has recommended.
K. M. Munshi : It was only the opinion of one individual.
Chairman : Then, we pass the clause as it is. Clause (e) is accepted.
We now take up clause (0.
K. M. Munshi : The words ‘public interests’ should be ‘public interest’.
C. Rajagopalachari : Apart from language, we ought to add, “including
the interests of minorities and groups” or some such language. The point
is, suppose you want to protect certain backward classes in the possession
of their property and the like, I think the tribes and others are interested,
we ought to provide not only for restrictions as may be necessary in public
interest, but also for the protection of some minority or backward group.
Jmpal Singh : This is very important These things look very grand on
paper. I being an Adivasi, this is the one thing that gives me new life or
finishes me. If you are going to make an order that I should become land¬
less, then the Constitution gives no hope for me. Let us be quite clear.
In Bihar, large patches of land, one-third of the province are at present
inalienable; so also two-thirds in Orissa. If you are going to make an order,
by using kind words for our men to become landless, we will be undone.
We must make it definite that the lands of the Adivasis are protected. I
want it to be definitely mentioned in the Constitution. My land is the one
hope I have.
C. Rajagopalachari: In pursuance of what Shri Jaipal Singh said, we
might add after ‘public interest* “including the protection of minority
groups and tribes.”
Rup Nath Brahma : This matter was raised in the Minorities Committee.
I raised the condition of the tribes in Assam. I am glad that provision
is being made.
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B. R. Ambedkar : We have got in the Government of India Act of 1935,
section 298, a specific provision in a statutory form. Sub-section 2 reads:
Nothing in this section shall affect the operation of any law which—
(a) prohibits, either absolutely or subject to exceptions, dispositions of
agricultural land situate in any particular area and owned by a person
belonging to some class recognised by the law as being a class of persons
engaged in or connected with agriculture in that area or as being an
aboriginal tribe, in favour or for the benefit of any person not b elon ging
to that class.
The substance of that section may be added.
Pratap Singh : This clause raises some sort of a controversy. I would
suggest that provision may be made by law to impose such reasonable
restrictions as may be necessary for the economic stability of the province
instead of public interest. Public interest may be considered from a differ¬
ent point erf view. My province Punjab is partitioned into small lots.
C. Rajagopalachari: I have suggested a phrase which would mean that
provision may be made in public interest including the protection of mino¬
rity groups and tribes. If you say Adivasi, why should we exclude some
tribe which is not Adivasi ? So, I suggested a general term.
Raj Krushna Bose : Why not say aboriginal?
C. Rajagopcdachai: Supposing a tribe does not want to call itself abori¬
ginal. hi the general term, aboriginal is included.
Chairman : Clause (f) is accepted as amended. We now adjourn for
lunch. Mr. Munshi’s Committee will meet at 3 P.M. and we will meet at
4 PM.
[The Advisory Committee reassembled at 4 p.m .]
Chairman : Now we come to clause 11.
Syama Prasad Mookerjee : Sir, we have not finished clause 10, to which
I have moved an amendment, saying that the words “the right of every
citizen to keep and bear arms in accordance with the law” should be
added.
C. Rajagopalachari : I can imagine what is in my friend’s mind when
he makes this suggestion. He wants that once a law is passed that a man
can keep arms, this power cannot be taken away from him. But I think
it is dangerous to keep the law in such a form, for it may be found neces¬
sary at some periods to deny this right to carry arms.
A Uadi Krishnaswami Ayyar: I think, in fairness to Dr. Mookerjee,
there is something to be said for his amendment. By saying “in accord¬
ance with the law” he means the law of the Union; so that the unit may
not be able to interfere with the law of the Union.
C. Rajagopalachari: That means, we make a provision that no unit
shall make any laws for its safety or security, if once the Union has passed
a law to allow the carrying of arms ?
Chairman: That means that the Arms Act will be a Central subject.
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K. M. Munshi: What Dr. Mookerjee wants is that this right of the
individual to carry arms should be there, that it should not be infringed
upon by the unit law, but only by the Union law. The Union law can
provide that in case of emergency the unit can pass a law by which this
power to carry arms can be regulated. This is a question which should be
settled on broad grounds of policy. You have announced. Sir, and many
provincial governments have announced that we should freely give arms to
the people; but unless we train our people gradually to appreciate this
right properly, it will not lead to any good. Therefore, my submission is
that this right may be recognised as one of the fundamental rights, and
we shall leave it there. It will not be indiscriminately used as in America.
It is a right which every self-respecting citizen of a State should
have.
Chairman : But to allow such a thing in the present state of our society
will be a dangerous thing. And if it is to be according to the law. the law
is there, and such a provision here is unnecessary. If you want it to
*be the law of the Union, then, as I said, the Arms Act will be a Central
subject.
K. M. Munshi : Otherwise, it will happen like this. One State may pass
an Act giving arms to its citizens, and another State more pacific, or
inclined to be non-violent, will continue without any such Act. The
result will be depredations across the border. In some of the States you
find arms being imported, but in the neighbouring provinces you do not
find any such arms at all.
B. R. Ambedkar : I think this point is of some substance and I think
there are two questions which it is necessary to consider separately. The
first question is whether every citizen should have the fundamental right
to bear arms. The second question is this, whether in an important matter
like the bearing of arms there should not be uniformity throughout the
Union. On the first question, there might be some difference of opinion.
People who are non-violent and follow that philosophy of course would
strongly object to it. But the second point, I submit, is a very very im¬
portant one. You cannot allow different units to make different laws with
regard to the bearing of arms. That would undoubtedly lead to complete
anarchy and it would cut at the very root of the security of the Union. If
one unit with a feeling of disloyalty against the Union as such were to
make a law that every member of that unit may possess arms and other
units with a more peaceable frame of mind and greater loyalty towards
the Union woe to prevent their citizens from bearing arms, there would
be such a great inequality in the position of the different units that it would
be a great danger and menace to the stability of the State. Therefore
apart from the question of whether every citizen should have the funda¬
mental right to bear arms or not, I think the second proposition requires
much greater consideration and cannot be very lightly disposed of. Mr.
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FRAMING OF INDIA’S CONSTITUTION
Panikkar’s objection seems to be that we are enlarging the Union powers
by the back door. I think he must have noticed that we did it on a very
large scale in the Fundamental Rights Committee.
M. Ruthnaswamy : But defence is a Union subject.
Some Members: Bearing of arms is not defence.
Chairman : Barring the States and the Muslim League, the rest of
India is represented here including the minorities. The May 16th Docu¬
ment does not prevent any changes by agreement. So the question so far
as the extension of the Central subjects is concerned would arise only when
the Muslim League comes in and takes part.
B. R. Ambedkar : I do not mind the matter being held back and con¬
sidered later.
Chairman : Then clause 11.
Purshottamdas Tandem : I do not at all see the point of putting off this
matter. I have not followed you at all.
Chairman : The difficulty is you were not here this morning. The Mus¬
lim League either comes in or not. If they come in, then surely such
questions are disposed of by agreement. If they do not come in, you must
have uniformity or reciprocity. If you pass a law here, it should be simi¬
lar to the law in the other area.
Purshottamdas Tandem : What other area?
Chairman : You do not contemplate any other area? Today the Muslim
League is out of this and if they say, “we do not want to come in and we
want a separate arrangement which would satisfy us,” then that area will
have to frame a constitution for that area. In that area, supposing there
is no such provision...
Purshottamdas Tandon : That does not affect us at all.
Chairman : That does affect. At the moment, we work under a disad¬
vantage. Therefore, such questions may be decided at the proper time
when a decision is taken. There is no harm in keeping this off. We start
with propositions which more or less would be agreeable to them. If they
come in, we will have to discuss with them again.
Purshottamdas Tandon : Do you mean to say that we do not do any¬
thing final today?
Chairman: If they do not come in, this is practically final.
Secretary : The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures, shall not
be violated and no warrants shall issue but upon probable cause, support¬
ed by oath or affirmation, and particularly describing the place to be search¬
ed, and the persons or things to be seized.
C. Rajagopalachari : I may be wrong; I have not examined it; but pro¬
bably this is taken from some constitution framed some two centuries ago
and when they had no regular laws. Today in our country a very com¬
plete code with regard to searches, etc., is already on the statute. And so
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to say, ‘no warrants shall issue but upon probable’, etc., is rather, I sub¬
mit, out of context to the present times. If the idea is that some States may
abolish the Penal Code, we cannot prevent it; that is the only justification
for a thing like this. Therefore I would ask why this comprehensive thing
which also in some respects goes beyond the present law, for instance with
regard to searches. Now, when there is suspected crime, the police can
immediately search, but under the present clause, I think we would be
encouraging crime.
Alladi Krishnaswami Ayyar : I am for the deletion of this clause. The
Constitutional Adviser after careful consideration furnished us with a note
which says :
Under the existing law, e.g. Criminal Procedure Code, section 165, the
relevant extracts of which are given below, the police have certain impor¬
tant powers. Often, in the course of investigation, a police officer gets
information that stolen property has been secreted in a certain {dace. If
he searches it at once, as he can at present, there is a chance of his re¬
covering it; but if he has to apply for a court’s warrant giving full details,
the delay involved, under Indian conditions of distance and lack of trans¬
port in the interior, may be fatal.’
If. as Rajagopalachari says, we include the words ‘except under due
process of law’, it will be the subject of interpretation right up to the
Federal Court. This will lead to considerable difficulty. I am for the
deletion of this clause.
K. M. Munshi: I think personally that the latter portion of this clause is
an impracticable condition.
Chairman : Would it not be advisable to leave this to the legislatures
themselves instead of bringing it in here? If a police officer were to pro¬
duce a court warrant before search, you may lose a case altogether. You
are simply saying from what you have seen in Calcutta. I am not saying
people get into a house and commit an offence. It will be a serious offence,
but no fundamental provision is necessary.
Syama Prasad Mookerjee : It is not a crime in the sense that no special
order of the Bengal Government had been passed but no action has been
taken or we have been unable to prove that the society is so demoralised
that these things are happening. I think that if an order of this type is
given, it will be a crime to get into another’s house.
Chairman : At one stroke on account of certain peculiar difficulties
that have arisen, you want to permanently abolish the laws that have worked
for such a long time and which have kept the society together all this
time.
Syama Prasad Mookerjee : You are speaking of so many things that are
absolutely unnecessary.
Chairman : What you are suggesting is a dangerous thing.
Syama Prasad Mookerjee: Unnecessary certainly, but for no reason
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FRAMING OF INDIA'S CONSTITUTION
people should not be harassed. Nobody says that there should be an un¬
necessary search. In every constitution these rights are recognised.
P. K. Salve: Clause 12 provides for this contingency. So no person can
be searched or his property.
Chairman : Based on long experience, to remedy these provisions of the
Criminal Law will be a dangerous thing in the present state of our society.
Govind Ballabh Pant : What is exactly the proposal?
Syama Prasad Mookerjee : There should be no searches unless...
Govind Ballabh Pant: As far as the first part is concerned, leave over as it
is. It says the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures and then goes
on to say that people should not be harassed in any way. The fundamen¬
tal principle that you want is always there. It does not require any
declaration to say that. But in all likelihood it would lead to a lot of
litigation, which can be avoided if you do not put in words which mean no
more than what you are intending to mean. It will become the subject
of litigation day in and day out. It won’t help anybody but lawyers. So
I am against it.
K. M. Munsfti: Every sentence will be contested in a court of law.
C. Rajagopalachari : I amended it thinking that this House will be
totally against deletion, but I find the House is in favour of deletion.
K. M. Munshi : I may say. as Dr. Syama Prasad Mookerjee pointed
out, that the clause ‘life, liberty or property except by due process of law*
implies practice.
C. Rajagopalachari : The idea is that these and similar clauses have been
taken from countries which made laws at a time when they had no problems
whatsoever. What is the good of our copying them?
Bakshi Tek Chand : This word ‘unreasonable’ will give rise to litigation
in every case. What is happening in the country is that the worst offender,
if his house is searched, sends an application right up to the Federal Court;
and this should never appear in fundamental rights.
Chairman: We delete 11.
C. Rajagopalachari : We all agree to the deletion.
Alladi Krishnaswami Ayyar : I must in fairness to B. N. Rau point out
what happened in the committee, to which view-point I should like to draw
attention. I mention this phrase ‘due process’, if I may use that expression,
we came to a decision after knowing where we stand. These words ‘with¬
out due process of law’ are taken from the American Constitution. This
expression had a very chequered history according to the American law.
Originally it was confined merely to matters of procedure. Later it was
extended to substantive rights and when judges changed they gave different
interpretations to the words ‘due process’. In the New Deal legislation
itself after President Roosevelt came into power, one set of judges
in particular cases gave one interpretation and another set of
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judges gave another interpretation, some in the direction of
social utility and some others in the direction of individual
property. So far as life or liberty is concerned, there is no difficulty at
all. If it is understood in the sense in which the American courts have
understood, it might indirectly affect tenancy and other legislation. Sir
B. N. Rau submitted a note. I supported him. We came to the conclusion
because after all the American courts have not given an unanimous inter¬
pretation. At one stage they confined it to procedure and at another stage
they extended it to rights and at a third stage they said it is subject to
public utility. Therefore we assumed that this expression ‘due process of
law’ will be followed by the Indian courts. The necessary implication of
that expression was placed before the committee. There is all the danger
that it may stand in the way of what may be called expropriatory legisla¬
tion. If you have got a set of judges who are more inclined to property,
then they might put a wide construction upon the words so as to hamper
what may be called a social legislation and if you have another set of
judges who are imbued with modem ideas, they might put a more liberal
interpretation. There is that danger inherent in ‘due process’ whatever
provision of law may be made in the different provinces in India. Sir B. N.
Rau did submit a long note and I have also submitted a note to the
committee and it is after understanding the full implications of that ex¬
pression the committee has decided to put in the words ‘due process of
law’. In a matter like this, it is not right that any of us should get a sort
of tactical advantage, being a party sponsoring legislation. It is a matter
of fundamental right which is going to bind the future constitution of India.
Whatever decision is readied, it is better that we are fully alive to the
implications of what we are doing. Personally I am for the retention of
the clause. I am not against that dause. I am willing to take that chance,
but there is that danger.
Govind Ballabh Pant: That danger is obviated by the right of the legis¬
lature to legislate against a decision of the due process of law. ‘Due process’
is understood in a procedural sense.
A Uadi Krishnaswami Ayyar: You are trying to put a limitation upon
legislative power by a constitutional guarantee. Clearly, having regard to
the particular subjects confined to a province or a unit to make any kind
of law, we want to put a restriction upon the legislative power by putting this.
Chairman: The clause as drafted is all right. There is some suspidon
about property.
Alladi Krishnaswami Ayyar: I am not saying that it ought to be omitted.
I am for its retention, but let it be dearly understood.
C. Rajagopalachari: It is quite dear from what Sir Alladi says that this
clause, if passed, will make it very difficult to make any laws which affect
property, because ‘without due process of law* would not only apply to
the procedure.
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FRAMING OF INDIA’S CONSTITUTION
Chairman: There i 9 a danger that certain old type of judges may
misinterpret this ‘due process of law’.
K. M. Pattikkar: If this is considered in terms of the retrospective
effect of laws which we have reserved at the present time, this clause may
have a far-reaching effect, because in clause 2 we have provided that all
laws that offend against fundamental rights laid down here shall stand
abrogated. Assuming that somebody decided that the Tenancy Laws passed
in Bengal or Punjab or anywhere else have not been under the ‘due process
of law*, all that may get abrogated. That is fully covered by the
reservation.
Alladi Krishnaswami Ayyar: With your leave. Sir, I have got a note in
which I have summed up the whole thing succinctly. In the earlier cases
under the Fourteenth Amendment, due process was treated in its organic
sense as a term applicable to legal procedure. In the year 1887, in the
Minnesota Rate case, the Minnesota Legislature created a commission with
power to establish its own rates whenever according to its findings un¬
equal or unreasonable rates were charged by the Rail-Roads. The com¬
mission found that the rate on milk charged by the Chicago Rail-Road was
excessive and ordered a reduction. The Rail-Road contended that the com¬
mission’s rate was too low, hence confiscatory and hence unconstitutional.
The Supreme Court repudiated its previous position that the reasonableness
of rates was for the legislature to decide and ruled that reasonableness was
a matter of ultimate judicial determination. By the doctrine laid down in
the Minnesota Rate case, the court gave substantive value to the due process
clause. From this time onwards a conflict was always noticeable between
the police power of the State and the due process clause and the
judicial decisions themselves are not uniform on the import of the due pro¬
cess clause. Later the Supreme Court realized the need for the adaptation
of the constitution to a managed national economy and the need for a
different approach from that which influenced the decision in Lochner
v. New York (1905; 198 U.S. 45) and Tyson v. Bantan (1927; 273 U.S. 418)
and the first indication of the Court’s willingness to make this adaptation
was found in the Minnesota Moratorium case (290 U.S. 398). The Minnesota
Moratorium decision in effect placed the security of society above the secu¬
rity of vested rights. One notices the same approach in the Milk Price case
(291 U.S. 502). The decisions therefore of the U.S. Supreme Court have
not been uniform on the interpretation of the due process clause. There have
been frequent oscillations and adjustments, sometimes the swing being to
the conservative and sometimes to a more liberal interpretation. During the
previous discussion, I drew the attention of the committee to the course
of decisions in America and the committee arrived at the decision after
their attention was drawn by Sir B. N. Rau and myself. Let us maintain
the decision with full knowledge of the implications. I am for retention of
the clause.
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Govlnd Ballabh Pant: May I know what the implications are ? Will
it be open to the legislature under this to empower the executive authority
to detain a person for, say, under six months without any trial being held
in any court?
C. Rajagopalachari: It will not be possible.
Govind Ballabh Pant: Will it be open under this clause for any legisla¬
ture to pass a law that certain property will be acquired for public purposes
for ten times its rental value while the market value is 30 times?
Alladi Krishnaswami Ayyar: The court may come to the conclusion that
it is not due process of law because it is so illusory.
Govind Ballabh Pant: Will it be open to the court under this clause to
hold that a person who is entitled to eject a tenant at will will not be allowed
to do so hereafter?
Alladi Krishnaswami Ayyar: It is just possible that the court may come
to the conclusion that the legislation is not intra vires.
Govind Ballabh Pant: It comes to this. The future of this country is to
be determined not by the collective wisdom of the representatives of the
people, but by the fiats of those elevated to the judiciary. If this is the case,
then I strongly oppose it. The words ‘due process of law’ should be altered.
The language should be fool-proof so that every judge may be expected to
give the same sort of ruling. We should not put in words which give rise
to controversies.
Chairman: The first question is whether a man can be detained without
trial.
Alladi Krishnaswami Ayyar: The court may come to that conclusion.
Chairman: In spite of an ordinance, particularly of the province?
B. R. Ambedkar: I see some of the difficulties pointed out by Pandit Pant.
Particularly I do not sympathise with the one relating to the leader of the
opposition in the U.P. being imprisoned for six months without due process
of law. But with regard to the other two points, namely acquisition of pro¬
perty or the passing of legislation regarding tenancy, these are matters which
we should specifically provide by a proviso. First of all, with regard to acqui¬
sition of property, we have a separate clause dealing with it, clause 26, where
payment of just compensation according to the principles that may be laid
down by the legislature is provided. The passing of tenancy legislation is
quite different. Nothing in this clause shall prevent the legislature from
passing tenancy legislation.
Govind Ballabh Pant: To fetter the discretion of the legislature would
lead to anarchy. It will lead to a great deal of trouble. Do you agree that
in your province people who are creating all sorts of troubles should be
tried in a court before they are prevented from committing mischief which
leads to communal disorders? If you insist on that, there is no end to these
communal disorders. I do not want words to be used here which will be
the subject of controversy, and which will place the fate of the people of
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FRAMING OF INDIA’S CONSTITUTION
this country on the whims and vagaries of the judges. Your language should
be fool-proof. If you intend that there should be no detention, it should be dear.
B. R. Ambedkar: In the provision dealing with grave emergency, we have
stated that all these fundamental rights would be liable to be suspended
whenever, in the view of the Union, it is necessary to declare an emergency.
C. Rajagopalachari: As Pandit Pant came a little late, it would be mis¬
leading to say that that provision would cover the case. That is the provision
where you suspend laws for a grave emergency. He is referring to particular
instances that would apply to individual cases.
K. M. Munshi: In several constitutions, there is a fundamental right for
a person not to be detained; that has been purposely omitted because we
do not want to fetter the right of the Government. The ‘due process’ clause
is considered with regard to every legislation. The means must have a
specific relation to the end, and I am quoting an eminent judge’s decision.
Due process of law only comes to this; that the legislation which is brought
forward is a proper and necessary legislation to secure the end in view and
that it is not extravagant with respect to each particular situation. It is very
easy to say that judges are not the proper judges of the situation. The
American Supreme Court has every time applied these canons whether the
legislation is a proper one. It has allowed socialistic legislation; it has
allowed detention to some extent; in times of war, it has allowed various
things. In the numerous cases that went up, only 10 or 15% have been
reversed. In most cases it has upheld drastic legislation. It is not correct to
say that judges will put themselves in the place of the legislature.
Chairman: What Pantji says is that the wording should be so precise as
not to be capable of different interpretations by different judges. Even here,
we have seen two different interpretations put forward.
Syama Prasad Mookerjee: The question raised by Pantji is whether the
legislature will have the power, under exceptional circumstances, to detain a
person without trial. I think if we add the words “due process and
sanction of law” it should meet his point.
C. Rajagopalachari: Let me ask Mr. Munshi whether it is at all arguable
that after this clause is passed in the form in which it is, legislation can at
all be passed by any unit giving power to the government of the unit to
detain any man for six months in any grave situation. Will not the law
come immediately under the examination of the Supreme Court? I have
no doubt in my mind that this will not permit any law being passed by any
government in a unit for the detention of persons temporarily.
B. R. Ambedkar: There is really no case for giving a carte blattche to
the government to arrest any person without recourse to law. Every one
agrees that this will be necessary only in the case of an emergency. But
ordinarily, when there is no emergency, why should the law make a facile
provision to enable the executive or the legislature to arrest a man without
the process of law?
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Chairman: That is a different question; you are examining it on the
question of its merit.
B. R. Ambedkar: There is some force in the argument that in some
contingencies, government should have the power to arrest a person. There'
fore I submit we can introduce a small phrase “except in grave emergency.”
Grave emergencies are dealt with under clause 10 and if this phrase cannot
be added here, then this portion of the clause may be transferred from No.
12 to clause No. 10.
Govirtd Ballabh Pant: We are leaving the fate of the country in the hands
of the lawyers who will be raised to the bench and they will have to inter¬
pret this law. We should not make it possible for them to interpret it in
different ways. We must have fool-proof language, if I may say so. We must
be quite clear in our minds what we intend to have. It is not good to some¬
how skip over this point As it now is, it seems to be wisdom proof, that is
what it looks like. In our province we are contemplating the abolition of
zamindaries and it is just possible that there may be a law to the effect that
the bigger zamindars may be paid compensation at the rate of ten times
their annual value and the smaller ones at forty times. These zamindars may
go to the court and say that payment must be cm the basis of the market rate
and the law may hang on for seven years for the Supreme Court to give a
decision. We do not want such a thing to happen. If you say that zamin¬
daries should not be abolished, that private rights should not be touched.
I can understand that. But to put in a law which can be interpreted by
different people in different ways is to stop all social progress. It is unfair
to the people who will have to be controlled by the fundamental rights
not for a day or two but for generations. I would certainly oppose such a
thing and I would expect the House to support me. To allow the court to
sit in judgment over the legislature or to control the legislature itself and
to say that a law will not be valid unless it is declared to be so by a single
individual sitting in the Supreme Court is extremely risky and I cannot
subscribe to that proposition.
Frank Anthony: This fear applies to every law we have made here.
Chairman: That depends on the scope of the mischief coming within
the law. Here it is suggested that if the clause is left to be interpreted by the
judges it would create a lot of mischief. Therefore we should guard against
it It is not quite right to say that because other clauses have been passed,
so this clause also should be passed.
K. M. Pamkkar: I submit that the property clause should be separated
from the life and liberty portion. The court is the guardian of our life and
liberty. So far as property is concerned, it must be subjected to legislation.
So I would make a distinction between life and liberty clause on the one
side and the property clause on the other. I quite follow that this would not
authorise governments to put people in jail. I myself will be sorry, because
this is a power which we now enjoy. By all means let us have certain
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FRAMING OF INDIA'S CONSTITUTION
provisions for the maintenance of public order and tranquillity, but subject
to those provisions, every person’s life and liberty must be absolutely sacred.
1 would suggest our taking the preamble of clause 10 and making it
applicable here.
C. Rajagopalachari: Clause 10 provides only for two things, public
order and morality, and the existence of a grave emergency. This need not
cover tranquillity and security. Grave emergency is something peculiar; it
is...
K. M. Pamkkar: I agree emergency requires a declaration. In an emer¬
gency various things are suspended and we have the right to do various
things.
Chairman: There has been a lot of discussion about this point; we cannot
continue arguing about it
K. M. Munshi: “Unless in the interests of public order and morality, no
person shall be deprived of his life, or liberty, without due process of law...”
Purshotiamdas Tandon: You are omitting the word, “property”.
Chairman: We have got to deal with property separately. We are now
dealing with life and liberty.
Bakshi Tek Chand : As Dr. Ambedkar said, you should limit this power
only to cases of grave emergency. Otherwise this clause will be much worse.
C. Rajagopalachari : I would suggest a compromise amendment. The
whole clause would read like this. “No person shall be deprived of his life
or liberty without due process of law nor shall any person be denied the
equal treatment of the laws within the territories of the Union provided that
this shall not prevent the enactment of laws in the interests of public order
and security.”
K. M. Pamkkar: It is quite OK.
C. Rajagopalachari : Surely, you must give this power to the Central
Government Otherwise, we need not have any government at all.
K. M. Munshi : I agree with this formula. We will deal with property
separately.
B. R. Ambedkar: We agree that property may be dropped from this.
Now, I believe that we are all unanimous that no matter what the Constitu¬
tion is, the executive should not have power to deprive a person of his life.
Therefore the word, ‘life’ should not be deleted under any circumstances.
The only question we have to consider is under what circumstances we can
restrict a man’s liberty. My submission is this. There is ample provision
in clause 30, sub-clause (3). It says, “The privilege shall not be suspended
unless when, in cases of rebellion or invasion or other grave emergency, the
public safety may require it.” I do not know what more is necessary.
The suspension of habeas corpus is tantamount to keeping a man in custody
without due process of law. My submission is, why do you want this power
ordinarily? So far as I have been able to read some of the constitutions,
these words about the declaration of an emergency are not introduced here
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only. It occurs in the Government of India Act of 1905, 1919 and even in
the Act of 1935. Whenever an emergency has been declared and the matter
has been challenged in a court of law, the position that the courts have taken
is this : “We are not the judges in order to find out whether there was
sufficient evidence before the Governor-General which would reasonably
have entitled him to declare an emergency.” I do not think there need be
any fear that the Supreme Court or any other court would sit in judgment
and say, ‘The evidence that the executive had was not sufficient. Therefore
the declaration of emergency was wrong.’ I think this is a very serious
matter. I think there are many here who share my sentiment that the legis¬
lature or the executive should not be placed in absolute power to dispose
of people’s life and liberty.
Chairman: Then we exclude the word ‘property’ from this clause. The
rest of the clause may be passed as it stands.
Govind Ballabh Pant: I do not agree, but I keep quiet.
C. Rajagopalachari: There is a proviso to this clause, “provided that
nothing herein contained shall prevent the Union Legislature from legis¬
lating in respect of foreigners.” I would submit that this should read,
“Provided that nothing herein contained shall detract from the powers of
the Union Legislature in respect of foreigners.”
Alladi Krishnaswami Ayyar: This right does not extend to foreigners.
They do not get it as a fundamental right. All the rights guaranteed to
our citizens are not guaranteed to foreigners.
C. Rajagopalachari : May I suggest the substitution of ‘no citizen’ in
the place of ‘no person’?
Alladi Krishnaswami Ayyar: So far as these general rights are con¬
cerned, they are rights extended to every human being. That was the
idea.
Bakshi Tek Chand: May I submit an addition to Rajaji’s draft? I
quite agree that the word ‘person’ is not an appropriate win'd and we
might say ‘provided nothing herein shall detract from or restrict” or
something like that “from the powers of the Union Legislature”, but I
will not say the words exactly, because the legislature may authorize the
executive in particular cases, but it must be the legislature. The powers
of the executive must be derived from the legislature and not independently.
Syama Prasad Mookerjee: It appears to me that the question of fran¬
chise regulation or adult franchise will have to be considered. Shall we
make it a fundamental right or shall we leave it to the Franchise Regula¬
tions to be made?
B. R. Ambedkar: Let it be a fundamental right. We have excluded
lunatics.
C. Rajagopalachari: It is not an ordinary part of fundamental rights.
P. R. Thakur: Let me also point out that here not only do we provide
adult franchise as compulsory. We also provide direct election and as
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such we prejudge two or three matters in this clause before we have
discussed it in the whole Assembly. We should not appropriate this
jurisdiction.
K. M. Panikkar: It also provides for the Union. Well, you may pro¬
vide Union franchise, adult franchise for the Union. That is a matter
for the Constituent Assembly, you may say, and that the constitution of
the Union shall be framed in such a way. That is for the Constituent
Assembly sitting in sections or in various other ways.
Shrimati Hansa Mehta: The right to franchise is fundamental. It might
be all right for the Union.
Chairman: Leave it for the present. Now we go to the original sub¬
committee clause 4. This clause about adult franchise is dropped for
the presort. It will be decided in the Constituent Assembly. It is kept
over for future consideration and it is considered that that should be consi¬
dered in the whole Constituent Assembly.
B. R. Ambedkar: The Constituent Assembly will consider matters which
are sent up to it by the different committees. The main thing will be
franchise. This is a fundamental right. Franchise is the principal thing
of the constitution.
Jagjivan Ram: Franchise is a fundamental right We may leave de¬
tails about voting to the Constituent Assembly, but we may decide the right
of the citizens to vote hoe.
Chairman: That is not what is mentioned hoe.
K. M. Panikkar: There is no difference of opinion. I think we are all
agreed. So we may leave it to the Constituent Assembly to make any
change but let it go from our committee.
Chairman : Your objection is to the details of it. There is no objection
to the clause regarding adult franchise. You are entitled to vote. That
of course is a fundamental right.
K. M. Panikkar: In elections to the legislature every adult will have
the right to vote.
C. Rajagopalachari: The idea behind this clause is that we must claim
it as a fundamental right so that the units also shall be bound to feel like¬
wise. This is the very mischief which we wished to avoid, that is to say,
we would be prejudging the main work of the Union so to say in framing
a constitution, which may be objected to. If we omit the units, no purpose
will be saved.
A Uadi Krishnaswami Ayyar: We had some doubts as to whether the
whole of electoral law can be brought in. We had some doubt as to whether
anything like a compendium of electoral law can find a place in the
fundamental rights. If it is merely a question of the franchise, then there
could be no insuperable objection, because you say that every man shall
have a right to vote. Then the main sponsors, Mr. Jairamdas Daulatram
and Dr. Ambedkar said: “We cannot leave it to party governments. They
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249
might manipulate elections and therefore it is much better that a self*
contained provision is contained in the clause.” No doubt the view is
possible that under the guise of fundamental rights you are encroaching
practically upon what may be called the provincial constitution. We can¬
not leave it for the Union Legislature that it must find a place in the
fundamental rights which is a possible Mew. We must mention general
fundamental rights of universal suffrage and leave the details of electoral
rules to the provincial constitution.
Chairman: It is not only the groups. The question is of States also.
A Uadi Krishnaswami Ayyar: An apprehension was felt that there may
be a tendency on the part of the provincial government and provincial
legislature so to manipulate rules and electoral things and so a guarantee
was necessary.
C. Rajagopalachari: Well, the right to have some share in the govern¬
ment may be considered to be a natural right in every democratic state.
I do not think in a list of fundamental rights we could go into such de¬
tails as we have gone into. So I think we may be satisfied with only
saying that every citizen shall have the right to take some share in the
government of the State. But to go into the details of the franchise is
going beyond the province of the committee concerned with the formula¬
tion of fundamenal rights.
Chairman: The age limit now I think is 19.
K. M. Padkkar: You are now raising it to 21. That itself is a legal
conception. This can be changed tomorrow and you make it impossible
to change it by putting it down as 21.
B. R. Ambedkar: I must say I attach a very great deal of importance
to this clause on adult suffrage, and I do not think we can allow any
exception to this. This clause 13 contains 3 fundamental propositions.
Whether you fix the adult suffrage at 21 or whether you fix it at 18 or
whether you fix at 13 is a matter of detail and that matter, I am sure
wQl be subject to consideration in the Constituent Assembly. When we
pass this, it does not mean that we have stopped the Constituent Assembly
from reconsidering the question. But so far as this committee is con¬
cerned my point is that we should support the proposition that the com¬
mittee is in favour of adult suffrage. The second thing we have
guaranteed in this fundamental right is that the elections shall
be free and the elections shall be by secret voting. It shall be
by periodical elections. We have not said that they shall be direct or
they shall be indirect That is a matter that may be considered at an¬
other stage. There may be difference of opinion if people want to consi¬
der it. The third proposition which this fundamental clause enunciates
is that in order that elections may be free in the real sense of the word,
they shall be taken out of the hands of the Government of the day, and
that they should be conducted by an independent body which we may
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here call an Election Commission. We have also given permission in sub*
clause 3 of this clause that each unit may appoint its own commission.
The only thing is that the law shall be made by the Union. The reason
for this is that later on there will be a clause in the Constitution which
will impose an obligation upon the Union Government to protect the
constitution framed by themselves for the units. Therefore we suggested
that the Union should have the power of making a law, although the
administration of that law may be left to the different units. There must
be adult franchise. In no other way can we be in a position to exert
such influence as we have and we ought to exercise in the formation of
the government, executive and the legislature, and I am sure about it that
our elections cannot be independent unless and until the question of elec¬
tion is taken out from the hands of the Government of the day.
C. Rajagopalachari: What Dr. Ambedkar said would be agreed to by
every one. My only point is whether it is proper to deal with this as a
fundamental right or whether we should leave it, or a greater part of it,
for the consideration of the whole Assembly. I submit we cannot take
it for granted that the Union Legislature shall be elected by the direct
vote from all citizens from all India. It may be a Federation Constitution.
It may be indirectly elected. The Government erf the Union may be
formed indirectly, so that we cannot assume that every adult or any one
whatever the description may be, shall have a direct vote to the Legis¬
lature. We cannot lay down a proposition here without going into those
details. We cannot therefore deal with the subject at all now. Whether
there is going to be direct election or indirect election, that must be settled
first. Wherever there is direct election, we may claim adult suffrage.
Without committing ourselves one way or the other, we should deal
with the question when it arises in connection with the Constitution and
not prejudge it as a fundamental right. If we try to make a fundamental
night out of it, that the Constitution shall be based on adult suffrage
or universal suffrage, it will be laying down a principle for the
Constitution.
B. R. Ambedkar: My reply is that this document or report will go
before the Constituent Assembly. There will be representatives of the
States; there will be representatives of the Muslim League. We shall hear
from them what objection they have to adult suffrage. If the whole
Constituent Assembly is convinced that while it may be advisable to have
adult suffrage for British India, for reasons of some special character,
the Indian States cannot have adult suffrage, and there must be some
sort of a restricted suffrage, it will be still open to the Constituent Assem¬
bly to modify our proposals. You cannot have it both ways. Either this
committee ought not to have been appointed now. You should have
first of all the Union Powers Committee report. You should have the
report whether the States are coming and if they are coming, on what
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251
terms. If we had known them, then we could have met and made our
report accordingly.
C. Rajagopalachari: Was it ever conceived .that the Fundamental Rights
Code should cover franchise?
B. R. Ambedkar: The American Constitution provides this. The right
of the citizens of the United States to vote shall not be denied or abridged
by the United States or any other State on account of race, odour or
previous conditions of servitude.
C. Rajagopalachari: That is non-discriminatory. There shall be no dis-
crimination.
Chairman: Such a provision cannot be a fundamental right
B. R. Ambedkar: My reply is this. In the peculiar circumstances...
Chairman: There is no difference of opinion on the merits of the pro¬
position that you have enunciated. I entirely agree that there should be
due safeguards, there should be adult suffrage and there should be free
elections and secrecy of voting. The only question is whether it should
be a fundamental right. You will have all support in the Constituent
Assembly.
B. R. Ambedkar: My fear is this. If the report of this committee goes
to the Constituent Assembly without including in it this fundamental right,
it may be later on argued that this particular right either was condemned
or was not approved of by this committee. I am perfectly prepared to
have this clause with an addition that although we have introduced this
clause, we realise that this clause may have to be modified in accordance
with the views of the States. This right as enunciated here should go with
all the authority of this committee.
Govind Ballabh Pant: Will it not save your purpose if this very clause
is sent to the Constituent Assembly, not as part of these fundamental
rights, but included in the letter of the Chairman to the effect that we re¬
commend to the Constituent Assembly the following principles in regard
to the framing of the constitution, keeping the text as it is?
Chairman: I agree with the proposition.
Govind Ballabh Pant: The only apprehension is that some people be¬
longing to the States may prick the bubble and say that their rights have
been interfered with and so on. They may not be represented. We will
have what we desire.
B. R. Ambedkar: I do hope that the Chairman will forgive me. While
we are anxious that the Indian States should come in, we shall certainly
stick to certain principles and not yield simply to gather the whole lot of
them in our Constitution.
C. Rajagopalachari: If we add in our report a paragraph saying that
the committee is of the opinion that the constitution of the units as well
as the Union shall be based on universal adult suffrage...
B. R. Ambedkar: The clause should go as it is.
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Chairman: I quite appreciate what Dr. Ambedkar says. There are
reasonable grounds for his apprehension that elections are not free in some
places and that the Government of the day or the Government in power
influence elections. Elections should be free and franchise should be
adult franchise.
Alladi Krishnaswanu Ayyar: Mr. Jairamdas Daulatram was saying that
in the province from which he was coming elections are a mere force.
K. M. Panikkar: I suggest that Pandit Pant’s suggestion be accepted
and it should be a paragraph in your letter that this was the view expressed
in the committee.
B. R. Ambedkar: I want the whole clause as it is to be sent by the
Chairman.
K. M. Panikkar: That this was the view expressed by the committee
to be incorporated in the chapter on franchise.
B. R. Ambedkar: Not merely as the view, but as the recommendation of
the committee.
C. Rajagopalachari: Let us be clear. Is this within our jurisdiction?
Jagjivan Ram: Let us make a recommendation at least that we want
adult franchise.
Bakshi Tek Chand: I would suggest that the following be sent as a
resolution: The committee is of opinion that in the Constitution to be
framed the following may be incorporated as part of the Constitution.
B, R. Ambedkar: If it is a fundamental right, then the legislature and
the executive cannot alter it. If it is not a fundamental right, it may be
liable to alteration. This sort of position could be easily safeguarded by
a clause in the Constitution.
Chairman: It is agreed that in the letter by Chairman, it will be re¬
commended to the Constituent Assembly that this clause should find a
place in the Constitution.
Bakshi Tek Chand: You might say that this committee is of the unani¬
mous opinion.
Chairman: We had appointed a sub-committee and they have drafted
clauses 4, 5, and 6. We may take them up.
C. Rajagopalachari : Clause 4 (1) “The State shall make no discrimina¬
tion against any citizen on grounds of religion, race, caste or sex.”
We have dropped the word “language”.
Bakshi Tek Chand: This is a very important matter. The rules may
be typed and circulated and we may take diem' up tomorrow.
Chairman: Then let us take up clause 14.
C. Rajagopalachari: I think we should add to 14 (1) that this shall not
be a bar to the imposition of taxes for genuine purposes of revenue.
Many Members: That comes later on: “N.B. A proviso will have to be
added to meet the difficulty pointed out in para 6 of our report.”
C. Rajagopalachari: That is why I am adding it.
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Alladi Krishnaswami Ayyar: “Subject to regulation by the law of the
Union, trade, commerce, and intercourse among the units by and between
the citizens shall be free.” That is the general principle. Then come the
exceptions, “Provided that any unit may by law impose reasonable restric¬
tions in the interest of public order, morality or health or in an emergency.”
Suppose there is a general famine, and people are starved, that is what is
meant here to be dealt with.
And then “Provided that nothing in this section shall prevent any unit
from imposing on goods imported from other units the same duties and
taxes to which the goods produced in the unit are subject” That is to
say, we ought not to differentiate; but at the same time, goods coming in
should not go scot-free; they should be subject to the same duty as goods
produced in the area.
And then “Provided further that no preference shall be given by any
regulation of commerce or revenue by a unit to one unit over another.”
Now. kindly read paragraph 6 of the report, regarding adding a
proviso.
K. M. Panikkar: Rajaji (C. Rajagopalachari) has raised the question of
the right of the units to raise taxes, and says this right should not be
denied. I, however, think this is a dangerous power to be given to the units.
This may result in the creation of so many competing units. We have al¬
lowed for two things. We have allowed the unit to tax its own industries.
We also allow things brought in to be taxed, for the sake of parity. But
our friends want to go a little further and say that the right to impose taxes,
or transit duty or some other kind of duty must be given to the units.
That, I am afraid, will be a negation of the clause. There are certain rates
and duties existing in Indian States which for budgetary and other reasons
cannot now be extinguished immediately. It may be possible to extinguish
them over a period of time, by agreement, but not immediately.
C. Rajagopalachari: If the States everywhere can impose taxes and duties
for revenue, cannot the provinces also do so?
Alladi Krishnaswami Ayyar: We do not give a carte blanche to the
States. It has been pointed out that certain condition of things obtain at
present in the States, and...
K. M. Panikkar: Let me explain the position. The position with regard
to the internal customs in the States is complicated. In a large number
of States these customs or duties do not exist. For example for the whole
of the Punjab States there is no right for internal customs. For Hyderabad
they have the right to impose a tax up to 5% only, both on imports and
exports. In Travancore and Cochin it is governed by what is called inter¬
portal convention. A large number of States have no right whatever even
now for imposing customs duty, but a considerable number of them do
enjoy this power and their budgetary position to-day is based on the customs
duties they receive, both the maritime States and the internal States.
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Therefore arrangements will have to be made with them by agreement and
contract for settling this matter.
A Uadi Krishnaswami Ayyar: The Union Powers Committee’s attention
was drawn to this matter and it was suggested by Sir V. T. Krishnamachari
and Sir B. L. Mitter that some reference should be made to it in their
report. We wanted to permit the States to enjoy the indulgence they have
been enjoying. But we should guard against converting the country into
competing units; that will be against the federation idea.
Chairman: What shall we do about the note? A proviso will have to
be added to meet the difficulty pointed out in para 6 of the report. Shall
we leave it as it is or shall we draft it?
C. Rajagopalackari: I would request members who have given thought
to this subject to please inform me how the units will raise their revenue.
As it is. the Union does not contemplate the distribution of subsidies to the
provinces. The provinces or groups differ among themselves, some are
rich and some are poor. Some are capable of managing with their existing
resources; but others may have to increase their revenue for managing
their affairs. If you impose so many limitations on them, how can they
do that? It is all very well to say free trade is necessary; but bow are the
provinces to live?
Alladi Krishnaswami Ayyar: So far as the provincial legislatures are
concerned, there is provision in sec. 297 of the present Government of India
Act itself: (Reads) “No Provincial Legislature or Government shall by
virtue erf entry * * * have power to pass any law or take any executive
action * * * description...”
C. Rajagopalachari: But at present we have the receipts from customs
and other receipts.
A Uadi Krishnaswami Ayyar: The other day the Madras Premier said
he could stop the import of textiles from Bombay and other places outside
Madras; but it was pointed out to him that until the constitution is altered
he cannot do so. This theory of self-sufficiency of different units is dangerous
in our country, because we have to depend upon one another.
Govind BaUabh Pant: There is unanimity about the body of this clause
and it is clear that there should not be any discrimination against one unit
by another unit. Otherwise we will be going against the very sense of a
Union or a Federal Constitution. If the units are to be discriminated against,
we will come to blows more often than otherwise. Therefore this should
be avoided. The only thing to be considered is how to give effect to the
suggestion made in para 6 of the President’s letter which we have received
through the Chairman. Should we append a note to the effect that the
Constituent Assembly may consider how best to give effect to this clause
in relation to the States or shall we put up a draft. If we are not going
to put up a draft, then the matter is simple enough.
Chairman: We are not in a position to put up a draft.
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K. T. Shah: I raised the point in the sub-committee and I would like it
to be cleared now, whether when a province or unit wants to go dry, and
the neighbouring areas do not want to go dry, that province or unit could
impose these reasonable restrictions? I was told that this was covered by
the exceptions already permitted, namely on grounds of public order,
morality or health.
Govind Ballabh Pant: Do not allow them to import toddy etc. from
other provinces. If you prohibit all drinks then this clause does not come
in at all.
K. T. Shah: Is it the intention that foreign commerce and trade shall be
controlled and regulated by the Union? I am referring to clause 14(2).
K. M. Parukkar: Assuming we want to establish protection for coastal
trade and things of that nature, in such a case, it has to be done by legis¬
lation by the Union, in order to give the right to the Government to control
foreign trade to the extent that national policy considers it necessary or
desirable.
Govind Ballabh Pant: While there may be no discrimination against the
citizens of the Union, there may be discrimination against a foreigner. If
that is the idea, I think it is necessary.
C. Rajagopalachari: The idea is that foreign trade and commerce shall be
controlled by the Union?
Alladi Krishnaswanu Ayyar : Yes, but if this part of the clause complica¬
tes the whole clause, I would rather drop this part, lest the whole clause
should go under the attack:
Clause 14(2) was dropped.
Chairman: Then we come to clause 15.
C. Rajagopalachari: May I suggest that we need not adopt the laws of
America as enacted at the time of slavery. What is intended is that forced
labour and any form of involuntary servitude except as a punishment for
crime whereof the party shall have been duly convicted are prohibited, etc.
Chairman: Let us take it clause by clause.
15. (a) Omitted.
(b) Traffic in human beings.
K. M. Parukkar: In Simla, as you know. Sir, people are being sold for
money.
Govind Ballabh Pant: Nobody has any objection. Let us take it as
passed.
Chairman: Then clause (c). Forced labour and any form of involuntary
servitude go together.
C. Rajagopalachari: Instead of tabulating it, why not run on?
Chairman: You have got (a) Traffic in human beings.
(b) Forced labour and any form of involuntary servitude, etc.
B. R . Ambedkar : The word begar should remain. Otherwise, you may
change it in any way you like.
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Chairman: Well, then, (a) traffic in human beings (b) forced labour
including begar and involuntary servitude except as a punishment for crime
whereof the party shall have been duly convicted.
A Member: Does it include bonded labour?
C. Rajagopalachari: It does. It is involuntary labour.
Chairman: Explanation —“Compulsory service under any general scheme
of education does not fall within the purview of this clause.”
Rajkumari Amrit Kaur: I am against compulsion in any form.
B. R. Ambedkar: This matter requires very careful consideration. It is
so late now that it would be difficult to discuss this matter adequately. So
for as I am concerned, I am opposed to sub-clause (2). That should go.
So far as the ‘compulsory service’ clause is concerned, it should be widen¬
ed by the elimination of the word ‘education’ and the addition of a clause
stating that wherever there is compulsory service, it shall be imposed upon
all equally without any discrimination and that it shall be paid for by the
State.
Govind Ballabh Pant: We can say, “any general programme of education
or any constructive activity for the benefit of the State.”
Chairman: Clause (3): “No person shall engage any child below the age
of 14 years to work in any mine or factory or any hazardous employment.”
(This was passed).
The explanation can be considered tomorrow. Would it not be better
for a small committee to consider this ? I would say Mrs. Hansa Mehta,
Rajaji and Pantji.
{The meeting then adjourned.)
The Advisory Committee met for the second day in the Council Chamber
of the Council House in New Delhi at 10 a.m. on April 22, 1947. Sardar
Vallabhbhai Patel was in the Chair.
B. R. Ambedkar: On page 2 there is a redraft of para 1 of clause 10.
The proviso should be redrafted. “In accordance with law” should be
deleted. That formed part of the old draft
C. Rajagopalachari: Some deletion is not mentioned here. The conclud¬
ing part in the draft is kept as it is. That will not go now with the redraft
of the first part of that clause. “Provision may be made by law to make
publication in accordance with the law” should be deleted.
Chairman : Shall we go to clauses 4. 5 and 6?
C. Rajagopalachari: We have clauses 4, 5 and 6 according to the
unanimous conclusions arrived at here, but it renders a small verbal change
in clause 2 necessary. Clause 4(1) will read: “The State shall make no dis¬
crimination against any citizen on grounds of religion, race, caste, language
or sex.”
Rajkumari Amrit Kaur: I do not want the elimination of sex. There
will be no distinction against any citizen on any of the above grounds.
Otherwise it will be a terrible thing.
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C. Rajagopalachari: In clause 4(1) we have put down sex. When deal*
ing with particular things like hotels or wells or roads, we have to remem*
ber that when we make any discrimination against sex 4(1) will apply to
everything without any qualification. In dealing with particularities sepa¬
rate provision for women would be necessary and if we say there shall
be no discrimination, we will have to follow it up.
K. M. Partikkar: Discrimination for women means discrimination against
men. If you have a park solely for women, being a public place or a pub¬
lic resort paid for from public funds, it will be considered illegal. Therefore
if you talk of sex you think it only means men. It is not so. When you say
no discrimination shall be made cm the ground of sex, it also means it should
not be discriminated against men. That is to say, if you have parks mark¬
ed for women only and paid for from public funds, that would be considered
illegal, if you say that no discrimination shall be made on the ground of
sex.
C. Rajagopalachari: Suppose we have a park for Protestant Christians, it
would be illegal. Suppose we have a tank for Mohammedans only, it
would be illegal. In die progress of civilization we have to provide for
women some institutions. That would be made difficult if we use the
word ‘sex’ hoe.
Shrimati Hansa Mehta: Do you mean to say that we should not have
parks for women only or tanks or wells?
Rajkumari Amrit Kaur: I would not object provided that nothing shall
prevent public institutions or places of recreation being set apart solely
for women. Further in the distribution of property you have discriminated
against sex. I object very strongly to it.
C. Rajagopalachari: Is that not covered by 4(1) which reads: “The
State shall make no discrimination against any citizen on the ground of
sex.” To cut short the discussion, the substance of Rajkumari’s sugges¬
tion is to add the words ‘or sex’ in clause 2 also and follow it up with a
further proviso ‘Nothing herein shall prevent separate places of public
resort being exclusively reserved for women.’
R. K. Sidhwa : What is it that the women want? If they want equality
of rights we are here for equality of rights. Do they want this plus some
special right, besides the equality of rights? I am not dear as to what
they want
C. Rajagopalachari: After the word “race” in clause (2) remove ‘or’
and add the words “or sex” after caste. It will read, “race, caste or sex.”
Bakshi Tek Chand: Then it will be practically the same as clause (1).
C. Rajagopalachari: Then after clause 2 (a) and (b) add “provided that
nothing herein shall prevent separate provision being made for women and
children.”
R. K. Sidhwa: There are separate clubs for women. We do not object
to that
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FRAMING OF INDIA’S CONSTITUTION
C. Rajagopalachari: I am not complaining about your attitude. There
is agreement about your attitude. The change now made in clause 2
will include sex along with race and caste. There is a proviso after (a)
and (b); “Provided that nothing herein shall prevent separate provision
being made for women and children.” The proviso covers clauses (a)
and (b).
Syoma Prasad Mookerjee: That will cover clause 1 also, I think.
K. M. Munshi: That will cover both clauses (1) and (2).
C. Rajagopalachari : Then, it may be changed into, “provided that no*
thing contained in this clause shall prevent separate provision being made
for women and children.”
Chairman: The clause is accepted as amended.
We take up olause 5.
B. R. Ambedkar: I would like to suggest a change. It is this: “No*
thing herein contained shall prevent the State from making provision for
reservation in public services in favour of classes as may be prescribed
by the State.” The reason for the change is this. I am omitting the
words “not adequately represented”. If we have the words “not adequate¬
ly represented”, any reservation made by the State may be open to be
challenged in a court. The court may say that reservation is made for
a class although in fact it is adequately represented. I do not want this
matter to be litigated in a court of law. Once the legislature or the
constitution or whatever authority you authorise has made a reservation,
that reservation should continue without being challenged in a court of
law. It will be quite impossible for a minority community for the matter
of that to face a litigation in a court of law if somebody took up the
matter stating here is a community for which reservation is made, which
in fact is adequately represented. I do not want that to be a matter of
litigation.
C. Rajagopalachari: I would appeal to you first on a technical ground,
that you were the draftsman of this matter, and secondly, on the sub¬
stantive ground that if you say “nothing herein contained shall prevent the
State from making provision for reservation in public services” without
any qualification, it would mean that in some States reservation may
be made for majority communities. We are not then really protecting
minorities.
B. R. Ambedkar: You may use the word “minorities” instead of
“classes”.
C. Rajagopalachari: When I suggested “minorities” you said, the ma¬
jority may not be adequately represented. I think it is very good as it
is. The only fear that could be made out now is that when a State
makes a particular reservation, the State will leave it to the minority to
defend it in a court. The State will stand by it.
B. R. Ambedkar: Why should this matter go to a court of law?
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M. Ruthnaswamy: You have placed it among justiciable rights.
B. R. Ambedkar: In the sense that the executive shall not override.
K. M. Munshi: I would suggest that we may say, “classes which in the
opinion of the State are not adequately represented.” Then it will bar any
discussion.
AUadi Krishnaswami Ayyar: Far from helping the classes, I am afraid
my friend. Dr. Ambedkar, may not have any protection at all.
B. R. Ambedkar: I may cut short the argument of my friend. He must
bear in mind that I am going to insist on some provision in the
Constitution itself that this shall not be a matter which will be left to
the sweet will of the legislature or the executive. It will be part of the
Constitution.
Bakshi Tek Chand: There is one point on which I should like to
have information. Do you want to retain the word “classes” or do you
want “protection for minorities”?
C. Rajagopalachari: This was fully considered. Minorities would ex¬
clude certain people whom we wish to put in. A minority may mean a
political minority. Therefore we have the word “classes”, an easier term.
Bakshi Tek Chand: Will that not include a majority?
C. Rajagopalachari: Who are not adequately represented in the
services.
Chairman: If a minority is not adequately represented the majority is
over-represented. If a majority is not adequately represented, the minority
is over-represented.
Bakshi Tek Chand: It may be limited to the minority.
K. M. Panikkar: I was responsible for the change from the word
'minorities’. The reason which I gave was that minorities in India have
come to have a specific meaning, that is to say, religious or political
minorities, Muslims, Sikhs, etc.
C. Rajagopalachari: Today it is Sikh, Muslim...
K. M. Panikkar: Sikh, Muslim, Depressed Classes, either a political or
religious minority. The meaning has come to that. There may be among
the majority, among the Hindus for example, many classes who have not
adequate representation in the services. The case which I had in my
min d was a very small community called Nambudiris. It may be desirable
to make some kind of provision not merely on the basis of political or
religious minorities, but for certain classes which we have to encourage
to come forward, so that it may afford protection not only for minorities
in the sense of Christians, Parsees, etc., but also provide for certain classes
which may have to be encouraged.
Syama Prasad Mookerjee: Shall we say “minorities and other classes”?
Chairman: Classes cover that.
K. T. Shah: How is the “opinion” to be expressed?
Chairman: The opinion of the State is ascertained by the legislature
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FRAMING OF INDIA’S CONSTITUTION
B. R. Antbedkar: I am not accepting the words “in the opinion of the
State.” My clause is the following : “Nothing herein contained shall pre¬
vent the State from making provision for reservation in public services in
favour of classes as may be prescribed by the State.”
C. Rajagopalachari: “As may be prescribed by the State” means “in
the opinion of the State.”
B. R. Antbedkar: If the two expressions mean the same thing. I
accept.
K. M. Munshi: “In the opinion of the State” is a much stronger phrase
than what he himself has drafted.
U}jal Singh: The clause as it is re-drafted by the sub-committee is.
“Nothing herein contained shall prevent the State from making provision
for reservations in favour of classes not adequately represented in the
public services.”
C. Rajagopalachari: That has been modified.
Chairman: If the Government decides that it is not properly represent¬
ed. they may do so.
Ujjal Singh: I am afraid the word “adequate” may be interpreted to
mean representation on a population basis.
Chairman: There is no question of population.
Ujjal Singh: Nothing in this should be interpreted in that sense. I
would suggest as Dr. Ambedkar has suggested, subject to provision for
the reservation for classes and minorities to be made by die State. I do
not want the word “adequate” to be used at all. I am afraid die word
“adequate” is going to be wrongly interpreted. I would suggest that the
clause should be, “Nothing herein contained shall prevent the State from
making provision for reservations in favour of certain classes and minori¬
ties.” That is all.
Chairman: That means?
Ujjal Singh: Minorities and backward classes. I do not want the word
'adequate’.
Chairman: If inadequate provision is made, is it enough? That will
be the interpretation of your clause. If you are satisfied, I have no
objection.
C. Rajagopalachari : Sardar Ujjal Singh’s proposal, if accepted by the
House would come to this. Instead of a non-discriminatory clause, a
provision will be made that the State shall make any reservation it likes.
If he wants such a thing, I think the whole non-discriminatory clause
would go. I think at least we must furnish a conscience clause so to say
for the State that they shall proceed where there is inadequate represen¬
tation and not otherwise, though we leave it to their opinion. If Sardar
Ujjal Singh thinks that population should not be the basis for measuring
adequacy, that means we are favouring the favoured classes over again.
That would not be right. The clause as finally amended would be, “Nothing
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herein contained shall prevent the State from making provision for
reservation in favour of classes who in the opinion of the State are not
adequately representated in the public services”
Ujjal Singh : I want this clause “who in the opinion of the State are
not adequately represented” should be deleted.
Chairman: The result would be, even if inadequate representation is
made, it is enough.
Ujjal Singh: After all, the State is the majority community that is going
to make the reservation.
Chairman: Reservation is either adequate or inadequate. If you are
satisfied with inadequate reservation, you can remove “adequate”.
Ujjal Singh: For example in the Punjab, reservation is made for the
Sikhs although they are only 13% of the population.
Chairman: You cannot provide everything here in detail.
Ujjal Singh: Twenty per cent is reserved for the Sikhs. If the words are
“who in the opinion of the State are not adequately represented,” certainly
they are not going to make any reservation for the Sikhs. They will say you
are only 13%, why should particular seats be reserved?
Chairman : You say ‘remove the word adequate’. Although you are
20%. they will say, “reserve only 5%”. What can you do?
C. Rajagopalachari: The Chairman may assure Sardar Ujjal Singh that
this clause will not prevent the State from giving a greater proportion.
He is under the impression that reservation is limited to the proportion
of population.
K. M. Panikkar: If you omit the words “who in the opinion of the
State are not adequately represen tated” and merely state, “reservation shall
be made for minorities”, what happens is, it is left to the Federal Court
to decide whether this is adequate or not. Here, on the other hand, two
conditions must be satisfied. That is, the State must consider that ade¬
quate representation has been provided; it will be open to the
Federal Court to say, “look here, the State’s opinion has also to be
stated.” Therefore, you are adequately protected under this clause, while
if you take it away, what happens? Any provision that is made goes up
to the court and the court may say, look here, 13% population, 13%
has been provided, it is adequate representation. For your security, it is
absolutely necessary to state whether you are adequately represented.
It is merely a direction to the court.
Ujjal Singh: My fear is, population will be the basis.
Chairman: The minorities’ fear will be there until the State learns to
behave.
Frank Anthony: I would like to suggest that the clause should be
amended, “nothing herein contained shall prevent the State from making
provision for reservations in favour of minorities or classes.”
Ujjal Singh: It should be “classes”. Classes over minorities.
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FRAMING OF INDIA’S CONSTITUTION
Frank Anthony: What is the objection to “classes and minorities”? The
classes will refer to Scheduled Classes.
C. Rajagopalachari: It is sufficiently described here: “those who are
not adequately represented.’’
Frank Anthony: Why should we fight shy of using words which have
the sanction of law and usage? We can make it more specific.
C. Rajagopalachari: Just as we do not say citizens and persons. If
one word is wider, we omit the smaller word.
K. M. Panikkar: We may put it “classes including minorities.”
Chairman: Minority is included in classes.
Frank Anthony: This is my amendment. I move in favour of “classes
and minorities”.
Ujjal Singh: “Minorities and backward classes.”
Chairman: This is simple English. Classes include minorities. This
is absolutely unnecessary. It is as clear as daylight. The committee has
come to the unanimous conclusion and we also feel classes include minori¬
ties. There is no need to suspect. The whole basis of the provision is
minorities. You say the State will exclude minorities?
Frank Anthony: We are not suspecting the present leaders. We do
not know who the future leaders would be.
Chairman: No leader would be so stupid as to interpret that classes
do not include minorities.
Frank Anthony: We have used the words elsewhere.
Chairman: Anybody will say that classes is a wider term. It is better
to use a wider word.
C. Rajagopalachari: I would appeal to him that according to the ordi¬
nary interpretation if you introduce the word minority, the question whe¬
ther a class is a minority will become justiciable. Classes will be interpret¬
ed in the sense of minority. The use of the general term ‘classes’ is
followed by the phrase “not adequately represented” and the opinion
of the State finally determines it. I think this is the best way of solv¬
ing it.
K. M. Munshi: In section 153A, the term ‘classes erf His Majesty’s
subjects’ has been used. “Classes” have been interpreted as minorities
Or religious communities also. Nobody has ever interpreted it as not
meaning minorities.
Frank Anthony: ‘Not adequately represented in the public services’.
Why can’t we leave it to the discretion of the State?
C. Rajagopalachari: We have accepted the words ‘in the opinion of the
State’.
Chairman: Shall we proceed?
Secretary: “5. No citizen shall on grounds only of religion, race, caste,
descent, place erf birth or any of them be ineligible for public office or
be prohibited from acquiring, holding or disposing of property or exercising
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or carrying on any occupation, trade, business or profession within the
Union. Nothing herein contained shall prevent a law being made presc ribing
that the incumbent of an office to manage, administer or superintend
the affairs of a religious or denominational institution shall be a member
of that particular religion or denomination.
C. Rajagopalachari: There has been a typing slip here. It was adopted
in the committee “or the members of the governing body thereof shall
be members of that particular religion or denomination.”
AUadi Krishnaswami Ayyar : How can you have any administration with*
out a governing body? Probably, the more words the better.
C. Rajagopalachari: Para. 3 clause 5 provides that the Union shall be
single and that no erne shall be ineligible only on grounds of not belong¬
ing to a particular place, but the State may make provisions prescribing
various conditions if they like. On that ground only, he would be ineligi¬
ble. Don’t you see the word ‘only’ there?
Rajkumari Amrit Kaur: We strongly object to the omission of the word
‘sex’. I would like to put it there.
C. Rajagopalachari: We discussed it at great length with Rajkumari.
Clause 4(1) was not there at the time she raised this. The case is now
covered by 4(1X also by 6.
Rajkumari Amrit Kaur: No, it does not cover.
C. Rajagopalachari: Clause 6. No disqualification shall arise on account
of sex in respect of public services or professions or admission to educa¬
tional institutions.
Chairman: Let us put down the word here in clause S. Shall we then
remove clause 6?
Bakshi Tek Chand: What about education?
K. M. Munshi: The latter part of the clause should come under educa¬
tion.
C. Rajagopalachari: Clause 6 need not be omitted. Let us keep it.
K. M. Munshi: Once you put the word ‘sex’ in clause 5, clause 6
becomes superfluous.
B. R. Ambedkar: What about hospitals and other things?
Secretary: Under the proviso to clause 4.
Chairman: Proviso to clause 4; “provided that nothing contained in
this clause shall prevent separate provisions being made for women and
children.”
C. Rajagopalachari: I must explain that this has become necessary
because we have omitted the clause which covers that subject. We have
to add, “notifications, regulations, custom”.
Chairman: Then it is passed. We go to clause IS.
C. Rajagopalachari : We are now dealing with clause IS. We proposed
yesterday some changes which I shall read, so that the explanation may be
read with it.
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FRAMING OF INDIA’S CONSHTGTION
Clause 15. (1) (a) Traffic in human beings; and
(b) Forced labour in any form including begar, and involuntary servi¬
tude accept as a punishment for crime whereof the party shall have been
duly convicted, are hereby prohibited and any contravention of this pro¬
hibition shall be an offence.
Explanation [to sub-clause (b)].—Nothing in this sub-clause shall pre¬
vent the State from imposing compulsory service for public purposes
without any discrimination cm the ground of race, religion, caste or
class.
Then a new clause between 15 and 16—
“No child below the age of 14 years shall be engaged to work in any
factory, mine or any other hazardous employment.”
Explanation “Nothing in this shall prejudice any educational programme
or activity involving compulsory labour.”
We were unanimous cm this in the special subcommittee.
B. R. Ambedkar: I would like to make one observation. My original
proposal was that such service shall not be gratuitous. These words are
omitted. It does seem rather serious that the State should compel people
to work and to be under no obligation to pay for the work. A well-to-do
man may not suffer any great hardship from this since he may have other
means to sustain himself while he is offering his gratuitous services, but
for the poor people it may mean a great hardship. But I am prepared
to trust the good sense of the government.
Rajkumari Amrit Kaur: I am opposed to this. I do not want any
compulsion in any form. I consider that in this country we have got
enough man-power for every conceivable form of service. But I know
my voice is a lone voice.
P. R. Thakur: Sir, crimes against women are increasing by leaps and
bounds. In Bengal, during the riots and also at other times, women are
being indiscriminately ravished by goondas. There must be some provi¬
sion for the protection of women.
Shrimati Hansa Mehta: But it does not come under fundamental rights.
Chairman: Now we will proceed to clause 16.
Secretary: 16. “All persons are equally entitled to freedom of conscience,
to freedom of religious worship and to freedom to profess religion, subject
to public order, morality or health and to the other provisions of this
chapter.”
To this, the Minorities Sub-Committee suggested an amendment which
reads like this:
“All persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion, subject to public order,
morality or health and to the other provisions of this chapter.”
Jagiivan Ram: I propose that the original clause may remain as it is.
C. Rajagopalachari: Apart from verbal difference which does not
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matter, the difference is this. Clause 16, as it originally stood, protected
freedom of conscience and worship. The Minorities Committee’s sugges¬
tion includes the right to propagate religion also. This is the actual dif¬
ference between the two.
K. M. Mumhl: There was discussion on this in the Minorities Committee.
Many things may not be exactly worship but may be in a sense practice
of that religion. You may have for instance the immersion procession of
Ganapathi. It is not worship, but practice of religion. If you go to a
temple, it is worship. Further than that, it will be practice of
religion.
C. Rajagopalachari: The second difference is the right to propagate
religion. Propagation comes under freedom of expression. There is a
sharp difference of opinion on whether these words should be pat sepa¬
rately. Then about practice. The question is whether worship alone,
whatever it may be, should be allowed or whether practice should be in¬
cluded in our fundamental rights.
K. M. Partikkar : During the past, many practices have been rightly or
wrongly interfered with beginning with sati. down to Sarda Act, Widow
Remarriage Act, which have been considered as part of religious practice.
The question is whether a fundamental right should be introduced to
cover all religious practices which the legislature may at one time or other
have to deal with by legislation. It seems to me rather a wide power
to be restricted by a fundamental right. We thought that it is essential
to give a certain amount of discretion in that matter to die State. It does
not mean that religious practices are to be interfered with. If the State
considers that certain religious practices require modification by the will
of the people, then there must be power for the State to do it.
Rajkumari Amrit Kaur: If this is accepted, the Sarda Act, the Widow
Remarriage Act and other Acts may be invalidated. I second Mr. Jag-
iiwan Ram’s suggestion that the original clause may be retained.
Syama Prasad Mookerjee: There are certain religious practices which
do not come within religious worship and if you omit religious practice,
it will lead to considerable hardship and difficulties. It would still be open
to the government to take any step to prevent the observance of religious
worship or practice on grounds of public order, morality or health. As
regards social reform, I suggest we insert a proviso to cover that.
Govind Ballabh Pant: I want the committee to be clear about certain
fundamental matters while dealing with these fundamental rights. We are
in a way framing smrithis that every commentator will thereafter try to
get over by introducing some sort of subterfuge or other. It is only to
put up some sort of impediment in the way of the advancing tide of pub¬
lic opinion, which you cannot possibly in any way circumvent or guard
against. Whatever precautions you introduce are bound to be blown
away. Only you make things more difficult. In framing these fundamental
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FRAMING OF INDIA’S CONSTITUTION
rights, you must try to make them dear and simple and not try to
put something in one sentence and then to follow it with three provisos
which will only make the whole thing unworkable. I personally think it
would be extremely dangerous to have the word “religion”. To say that
it will be open to people to claim a safeguard against a thing done by the
legislature in the Supreme or other courts on die ground that the law
infringes the practices that come under the name of religion is to make
any constitution utterly unworkable. So I suggest that we stick to the
original clause. By introdudng the word ‘religion’ it will militate against
any real right of religious worship.
K. M. Munshi: If you cut down the words it will mean very serious
consequences. The first question is ordinarily ‘freedom of religion’ which
is used in most constitutions. It is generally left to the judge to dedde
what is religion and what is not Certain constitutions have used the
word ‘practice of religion’. That is accepted by many constitutions. This
was thought to be very wide by some members of the Fundamental Rights
Committee. I am only mentioning the airguments which weighed with
me and several other friends both here as well as in the Minorities Com¬
mittee. Then with regard to ‘practice’ take an ordinary temple which
maintains certain cows.
Chairman: It is only a question of guaranteeing a certain amount of
religious worship. The minimum is provided as a guarantee.
K. M. Munshi: Smrithis have made it abundantly clear that whatever
is customary law is not part of Hindu religion. Most of the Smrithis were
based on custom and not on Dharma. Secondly so far as Smrithis them¬
selves are concerned they contend that they can be altered. Therefore it
is not correct to say that the amendment of the Hindu law will come in
the way.
Attadi Krishnaswami Ayyar: If you look into the history of law re¬
ports and various orders passed under section 144, if anything has been
responsible for disturbing the peace of the country it is the religious prac¬
tices such as music before the mosque, cow kilting etc. Are you going
to give a kind of guarantee to this practice which has been the bane of
our country and which has been responsible for communal and class
hatred? We can trust the wisdom of the legislatures not to interfere
with religious practices, but to give a kind of solemn sanction in a consti¬
tutional document to these practices will be perpetuating an evil which
will strike at the very foundation of the State. My second point is that
you can never separate social life from religious life. I cannot claim the
knowledge of my friend but if there is (me thing which has contributed
to the merit of the old Hindu system it is the inter-mixture between re¬
ligion. and the social fabric of society. It is a single society. If you get
away from your society, you have no business to hold property. That is
why the Caste Disabilities Act was passed and similarly in regard to
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temple entry. The Sanatanists waited on Parliament at the time when the
last Act was passed in order that there might be guarantee of religious
institutions. Parliament said: “You want to advance in social matters
and we do not want to give a kind of constitutional guarantee which will
stand in the way of social progress and social amelioration.” Therefore
I am for retaining the clause as it emerged from the Fundamental Rights
Committee.
Alban D’Souza: If it is necessary to cover certain practices, there is
no reason why we should not add this proviso. Fears have been expres¬
sed that practice of religion would be a bar to future social legislation as
well as those which have been passed. Even Acts like the Sarda Act have
been on the statute for years and no effort has been made to repeal or
abrogate these. It is always not the prevention of the practice of religion,
but education and social service work that has helped us over the
difficulties and social disability.
Ujjal Singh: Both these provisions are to protect the citizens and parti¬
cularly the minorities in respect of rights which are considered vital against
the whims of a majority. It may be all right for the majority provinces
like Madras, but we have to protect the rights of the minorities against
the brute majority. Sir, in my religion it is more a religious practice that
matters. I therefore strongly feel that whatever provision you may make
in respect of public order or morality or even in respect of social legisla¬
tion, you must protect religious worship. Otherwise you will not be pro¬
tecting my religion.
/. L. P. Roche-Victoria: It was after taking everything into considera¬
tion that the Minorities Sub-Committee has put in this recommendation.
Chairman: If the minority decision is to be taken as a basis the ma¬
jority need not come at all.
/. L. P. Roche-Victoria: It requires a very great consideration in the
hands of this committee.
Chairman: Those who are in favour of inserting the word “religious
practice” in Explanation II of clause 16 will raise their hands. (The amend¬
ment was accepted.)
C. Rajagopalachari: Having accepted the enlargement of practice of
worship we will have to provide against more than one matter, namely
first of all, social reforms in the particular community must be permissible
with the consent of the legislature of course. Hie other thing is conflicts
and mutual difficulties. These will have to be provided in a comprehen¬
sive clause.
Chairman: The principle is accepted. You and Dr. Syama Prasad may
sit together and draft.
M. Ruthnaswamy: The word ‘propagate’ is a well known word. It in¬
cludes not only preaching but other forms of propaganda made known by
modern developments like the use of films, radio, cinemas and other things.
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FRAMING OF INDIA'S CONSTITUTION
K. M. Munshi: The word might be brought, I think, to cover even forced
conversion. Some of us opposed it. I am not in favour of it. So far as
die “freedom of speech’ is concerned it carries sufficient authority to covet
any kind of preaching. If die word ‘propaganda’ means something more
than preaching, you must know what it is and therefore I was opposed to
this introduction of the word ‘propaganda’.
Alladi Krishnaswami Ayyar: Even in the American continent we do
not have these practices as a special right, because we have freedom of
speech. We have freedom of conscience. You have got the freedom of
the press which is involved in the freedom of speech and writing. There*
fore why {dace in the forefront of our country this propagation of particular
religious faiths and belief. I personally do not recognise the right of
propagation.
Govind Ballabh Pant: At the worst it is redundant and as so many
members want it we had better introduce it
K. M. Munshi: It is not a redundant word.
Chairman: Let us take votes on it. Those who are in favour of retain¬
ing the word “propagate” may raise their hands. (The amendment was
accepted.)
(Addressing Sardar Ujjal Singh) When you are allowed religious prac¬
tice, why do you want it here?
Ujjal Singh: You have introduced die words ‘subject to public order’.
I do not want the wording *the wearing of kirpans should be allowed’
should be there, but that the practice of the Sikhs may be allowed.
Chairman: Having inserted religious practice, if you say it is not a re¬
ligious practice then it is necessary. The wearing of kirpans is recognised
as a religious thing.
C. Rajagopalachari: Having accommodated in every manna all these
fears and apprehensions, we have introduced no doubt the word ‘practice’.
This is a major point raised by a very large and important community.
There is no harm. I think, in our putting it clearly since they have raised
this point Let us say ‘The Sikh practice of wearing kirpans is recognized
heron.’
Chairman: We will take votes on this. Sardar Ujjal Singh says that
Explanation 1 should be retained. C. Rajagopalachari supports it. (After
taking votes) The clause is retained.
C. Rajagopalachari: I think the wording should be corrected as “The
Sikh practice of wearing and carrying kirpans as a religious duty shall
be protected under this clause.”
Bakshi Tek Chand: It is not necessary.
C. Rajagopalachari: The language was suited to the clause as it stood
originally. We have changed the clause. We will have to alter this to suit
the present clause.
Many Members: We may leave it as it is.
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Chairman: Keep it as it is. We will take up Explanation III.
K. T. Shah: If a civil obligation is made, let us say, to kill rats as
plague carriers, on the ground of their religion, the Jains would naturally
refuse. I suggest that conscientious objection should be permitted even
if you do not delete the clause.
K. M. Pamkkar : I have very strong objection to this clause. I think
this goes against all the doctrines of renunciation. It is not for us here
to reform dogmatic principles which are held strongly by a section erf the
people.
To say that a Sanyasin...
Chairman: Shall we omit Explanation in? (With the concurrence of
the House) Explanation HI is omitted. We take up clause 17.
Syama Prasad Mookerjee: The words at the end, “consistently with the
provisions erf this chapter” are redundant and may be dropped.
K. M. Munshi: It leads to this anomaly. It may attract the opera*
tion erf clause 4.
C. Rajagopalachari: This would give, I think , an opportunity which
was prevented by laws against perpetual ownership of property.
K. M. Munshi: No.
C. Rajagopalachari: In other matters we have provided for public order
and morality. Here we have apart from profession of religion, property
acquisition. It must be subject to the law. The words “subject to the
general law” may be added. Supposing we make laws with regard to
property, this should not over-ride the laws. What is the need for clause
17 when we have an ordinary law of property. You feel there is a need.
Yon feel there is need for a fundamental right that a religious denomina¬
tion shall hold property. How can a religious denomination hold property ?
It means that an institution may hold property. There is no meaning in
making a fundamental right that a denomination shall hold property. We
must therefore say, subject to the general law and not make it absolute and
above law.
K. M. Munshi : The point is this. We have said that a citizen can
hold property. We have not stated that a religious group can hold pro¬
perty. It would be competent to the legislature to prohibit this.
B. R. Ambedkar: It may be prohibited by the legislature.
Alladi Krishnaswami Ayyar: “Subject to any law as to maladministra¬
tion of funds”, should be added. “Subject to law” is meaningless.
Chairman: I think this clause may be dropped.
Frank Anthony : This is a very vital clause so far as the Christians are
concerned.
Chairman: It is not possible to provide every conceivable thing in funda¬
mental rights.
C. Rajagopalachari : A denomination cannot hold property. It is some
cor p or a tion that will hold some property.
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FRAMING OF INDIA’S CONSTITUTION
K. M. Panikkar: In various countries laws have been passed against
religious corporations holding property. For example, in France it has
been held that religious corporations and religious bodies shall not hold
property and shall not have educational institutions. The French Govern¬
ment itself had to modify after 15 years of experience.
Chairman: The French people learnt after experience. We have no bad
laws.
K. M. Munshi: Religious freedom is meaningless if this clause is deleted.
Fundamental freedom of religion necessarily carries with it the right for a
religious denomination to retain property.
Govind Ballabh Pant: I move that the words “subject to the general law
of the land” be inserted at the outset.
AUadi Krishnaswami Ayyar: I would rather drop the clause than put
it in this way.
C. Rajagopalachari: I would suggest this modification, the words “sub¬
ject to the general law” may be inserted after the word ‘and’ and before
‘to own’.
Chairman: With this addition, and with the deletion of the last seven
words, this clause may be put to vote. The clause as revised would
read: “Every religious denomination shall have the right to manage its
own affairs in matters of religion and subject to the general law, to own,
acquire and administer property, movable and immovable, and to esta¬
blish and maintain institutions for religious or charitable purposes.” The
clause is accepted as amended.
B. R. Ambedkar: All that is necessary to do is to say that the State
shall not impose disqualification upon a religious denomination holding
property. If we put it in this way, “No religious denomination shall be
disqualified to manage its own affairs, etc.”, that would cover the case.
Chairman: Then we take up paragraph 2 of the clause. We have al¬
ready a good number of them which are not cared for.
Alladi Krishnaswami Ayyar: This is unnecessary. This may be drop¬
ped.
Chairman: This paragraph is dropped. We take up clause 18.
C. Rajagopalachari: I suggest that the words “to further or maintain
a particular religion or denomination” should be substituted in the {dace
of ‘religious purposes.’ To say that no one shall pay any tax in further¬
ance of religious purposes is not right.
Chairman: May I take it that this is agreed to. The clause is accepted
with the amendment. We take up clause 19.
C. Rajagopalachari: Now that we have got the other similar clause, this
would be unnecessary.
Many Members: This clause should be retained.
Chairman: This clause is accepted. We go to clause 20.
Secretary: The Minorities Committee has suggested a re-draft of the
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clause as follows: “Any property continuously used for public religious
worship shall not be taken or acquired by the State, save for necessary
works of public utility on payment of just compensation and with the
consent of the parties concerned which shall not be unreasonably
withheld.”
A lladi Krishnaswami Ayyar : I would rather omit this clause.
Chairman: This clause 20 is omitted.
Ujjal Singh: This clause is necessary and should be retained. Even
today, the Defence of India Rules provide for the acquisition of places of
religious worship.
Chairman: The Defence of India Rules are not in existence today. We
cannot have every conceivable thing in the fundamental rights. We do
not interfere with the rights of the legislatures.
We may take up clause 21.
Secretary: This has been redrafted by the Minorities Committee like
this: “(a) No person under the age of 18 shall be made to join or profess
any religion other than the one in which he was born except when his
parents themselves have been converted and the child does not choose
to adhere to his original faith; nor shall such person be initiated into
any religious order involving a loss of civil status.
(b) No conversion shall be recognized unless the change of faith is attest¬
ed by a Magistrate after the inquiry.”
Chairman: I consider these are matters to be left to legislation. (With
the concurrence of the House) Clause 21 is deleted. We may take up clause
22. This clause too is unnecessary, and may be deleted. This is not a
fundamental right.
Frank Anthony: These are matters which are absolutely vital to the
Christians; clause 22 about conversion.
Af. Ruthnaswamy: The deletion of the clause allows conversion.
Frank Anthony: You are leaving it to legislation. The legislature may
say tomorrow that you have no right.
Chairman: Even under the present law, forcible conversion is an offence.
Syoma Prasad Mookerjee: There is significance with regard to the civil
law. If a person is converted by undue influence or coercion, the rights
do not relate to the point at which he was converted.
Chairman: What you really want is that society will not recognize
forcible conversions. It is for the society and not for the law.
Syama Prasad Mookerjee: Clause 22 should not be deleted. It may
not be recognized by law. Let us be clear about facts. If a person is
converted to another religion even by undue influence...
Chairman: Is not the exercise of such undue influence an offence?
Syama Prasad Mookerjee: I am talking about the first part. If there
is conversion by coercion, it does not put back the civil rights of the per¬
son as before.
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FRAMING OF INDIA’S CONSTITUTION
Chairman: We cannot have a fundamental right for every conceivable
thing. We are not legislating.
Bakshi Tek Chand: Take the recent case of a Sikh who was forcibly
converted in Rawalpindi District The Sikh society took him back later.
Now, what is the position of his rights in between these two times?
Chairman: That was forcible conversion. Forcible conversion is no
conversion. We won’t recognise it.
“Conversion from one religion to another brought about by coercion
or undue influence shall not be recognised by law.” We drop the last
line.
Secretary: 23. “Every citizen is entitled as of right to free primary
education and it shall be the duty of the State to provide within a period
of 10 years from the commencement of this Constitution for free and
compulsory primary education for all children until they complete the age
of 14 years.”
M. Ruthnaswamy: Is this a justiciable right? Supposing the government
have no money?
Alladi Krishnaswami Ayyar: I want the deletion of this clause.
Govind Ballabh Pant: I suggest that this clause be transferred to Part
2. It cannot be justiciable. No court can possibly adjudicate.
Chairman: Clause 24.
Secretary: 24. “Every citizen is entitled, as part of his right to free
primary education, to have facilities provided for learning the national
language either in the Devanagari or the Persian script at his option.”
Chairman: That also goes.
Secretary: 25. “Equal opportunities of education shall be open to all
citizens:
Provided that nothing herein contained shall preclude the State from
providing special facilities for educationally backward sections of the popu¬
lation.”
Frank Anthony: I would suggest that the State should provide special
facilities where die State regards it as reasonable.
Secretary: 26. “No property movable or immovable, of any person or
corporation, including any interest in any commercial or industrial under¬
taking, shall be taken or acquired for public use unless the law provides
for the payment of just compensation for the property taken or acquired
and specifies the principles on which and the manner in which the com¬
pensation is to be determined.”
Govind Ballabh Pant: The words ‘public use’ are there. Does it cover
tenancy legislation?
Alladi Krishnaswami Ayyar: So far as tenancy legislation is concerned,
it would not interfere with that.
Govind Ballabh Pant: If it does, then I will quote you. (The clause was
retained).
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K. T. Shah: I would like to add a proviso that no private property shall
be guaranteed in the form of natural wealth like flowing water in rivers,
mines, etc.
Chairman: If you wanted that proviso, you should have voted against
retention.
C. Rajagopalachari: I would ask those who drafted this to explain. Is
it only to say that where government acquires property for public use,
they should pay compensation or do you mean to say it should not be
taken except for public use and then compensation should be given?
A Uadi Krishnaswami Ayyar: This has followed closely section 299 of
the Government of India Act.
B. R. Ambedkar: It is ambiguous in a sense. If government makes
tenancy law, is that public use or not? We must make it clear.
Govind BaUabh Pant: Suppose the government acquires zamindari
rights, and zamindari rights are abolished.
K. M. Munshi: If zamindari rights are abolished, this clause will not
be of any use.
Govind BaUabh Pant: Suppose the government acquires all the houses
situated in Connaught Place and then distributes them among the tenants
who have been residing there so far. The first stage is the acquisition of
those houses. The second stage is the distribution of those houses. Does
that acquisition come under this clause?
Alladi Krishnaswami Ayyar: Certainly.
Govind BaUabh Pant: If that acquisition is going to be governed by
this, then government will not be free to determine the compensation that
it will have to pay. If it is so, then I am against it I am prepared to
accept it if public use here means some use for a purpose connected with
the government itself.
C. Rajagopalachari: Sir, this question cannot be decided by questions to
one another and taking their answers as final. We must decide what the
words will actually mean. It is not stated hen. ‘for government purposes
or for other purposes’. So it is ambiguous. If this clause covers all cases
of acquisition, then the question of just compensation will be taken into
court with the result that government functioning will be paralysed.
Alladi Krishnaswami Ayyar: I want to explain the principle of this section.
I would draw your attention to section 299 of the Government of India
Act, 1935. This clause closely follows section 299 which has not stood in
the way of government acquiring any property.
299. (2) Neither the Federal nor a Provincial Legislature shall have power
to make any law authorising the compulsory acquisition for public
purposes of any land, or any commercial or industrial undertaking, or
any interest in, or in any company owning, any commercial or industrial
undertaking, unless the law provides for the payment of compensation
for the property acquired and either fixes the amount of the compensation,
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FRAMING OF INDIA’S CONSTITUTION
or specifies the principles on which, and the manner in which, it is
to be determined.
I may tell you there is a slight change in the language. The words
‘just compensation’ have been used instead of the word ‘compensation’.
The expression ‘just’ has been borrowed from the American and Austra¬
lian Constitutions where the words ‘just compensation’ have been used.
After all, compensation carries with it the idea of ‘just compensation’.
Therefore the words ‘just compensation’ have been used.
B. R. Ambedkar: I don’t think Sir Alladi has placed a proper construc¬
tion on section 299. Sub-clause (3) of section 299 has to be read in order
to understand what is exactly meant by public purpose or public use. My
submission is this. The term ‘public purpose’ as introduced in section 299
is a much wider term and not only includes acquisition of property for
a limited government purpose, for instance, building a police station, but
for any public purpose. It says
299. (3) No bill or amendment making provision for the transference to
public ownership of any land or for the extinguishment or modification of
rights therein, including rights or privileges in respect of land revenue,
shall be introduced or moved in either chamber of the Federal Legisla¬
ture without the previous sanction of the Governor-General in his dis¬
cretion, or in a chamber of a Provincial Legislature without the previous
sanction of the Governor in his discretion.
Therefore my submission is this. The reason why the previous sanction
of the Governor-General is stipulated in sub-clause 3 is because the term
‘public use’ or ‘public purpose’ as used in section 299 is a very wide one
and not only includes limited governmental purposes but also social pur¬
poses. Therefore, my submission is that unless you introduce some limit¬
ing clause to the broad fundamental right as indicated here, this clause
will affect programmes of action such as the one mentioned by Pandit
Pant. If you want to make a distinction between acquisition of property
for a limited government purpose and acquisition of property for redistri¬
bution of ownership among the general public, then the clause, as it is,
may remain, but it does seem very very drastic if you want to cover all
public purposes. My suggestion therefore is there ought to be some limit¬
ing clause or the words ‘public purpose’ should be substituted by ‘govern¬
ment purpose’.
K. M. Panikkar: The clause that has been read out makes two condi¬
tions. One is that it is left to government to determine the compensa¬
tion under the clause that has been read out from the Government of
India Act. That is to say, the compensation paid by the government is
not open to question. Here by using the words ‘just compensation’, you
have made it open to question in a court of law whether the compensa¬
tion is just or not. Therefore, I would urge taking away erf the word ‘just’
from this clause.
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Chairman: Then, we will drop the word ‘just'.
Govind Ballabh Pant: I want only to draw the attention of the members
of the committee to the context of section 299. It was put in in order to
reassure British commercial firms that their property would not be acquired
by the Indian legislatures except on payment of adequate compensation.
I have no objection to any sort of restrictions being placed on the govern¬
ment with regard to acquisition of property for the use of the govern¬
ment itself. In fact, I want it so that they may not exercise their powers
wildly. But if it is a question of acquisition of property for social pur¬
poses, then I submit, payment of compensation should not even be com¬
pulsory and it should be left to the government concerned to decide how
they will achieve that purpose.
Syama Prasad Mookerjee: There should be a uniform procedure laid
down for the entire Union. The principle that compensation should be
paid should be uniformly accepted, but the details may be worked out by
the legislature concerned.
A Uadi Krishnaswami Ayyar: I suggest that the language of section 299
be adopted. It has worked for over 10 years and no difficulties have arisen.
Congress governments have worked it and non-Congress governments have
worked it.
Chairman: Is it agreed that we copy the language of section 299 ?
C. Rajagopalachari: If the proposal is to go back to a specific section
of the Government of India Act, 1935, I submit. Sir, it should not be put
into fundamental rights but left to the Constitution.
Chairman: Pandit Pant’s suggestion is that the words ‘public use’ should
be substituted by the words ‘government purposes’.
Ujjal Singh: Some compensation has to be paid for any property acquir¬
ed for any purpose. If you limit it only to government purposes and no
compensation is contemplated for property acquired for other purpo¬
ses...
Chairman: There will be compensation if the legislature chooses. If
the word ‘just’ is there, it will have to be determined by the Federal or
other courts; and if all individual experiences are to be included in the
fundamental rights, there will be no end. There must be some unanimity.
Alladi Krishnaswami Ayyar: It is a mere matter erf adjustment. Half
a loaf is better than no loaf.
* * *
Alladi Krishnaswami Ayyar: I would rather have some kind of constitu¬
tional guarantee that the words ‘government purposes’ mean...
Bakshi Tek Chand: Let it remain.
Govind Ballabh Pant: I have no objection to ‘just’ remaining there if
‘public’ is replaced by ‘governmental’.
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FRAMING OF INDIA’S CONSTITUTION
Chairman: That is no agreement
K. M. Munshi: If there is no agreement it must be put to the vote whe¬
ther it should be ‘public use’ or ‘governmental use’.
Chairman: I shall take a formal vote whether the words ‘governmental
purposes’ as suggested by Pantji are to be replaced by ‘public purposes’.
(The motion was dropped.)
If the word ‘just’ is kept we came to the conclusion that every case will
go to the Federal Court. Therefore ‘just’ is dropped. What remains in
the clause is ‘public purposes’.
K. M. Munshi: Clause 27. These are usual fundamental rights in regard
to criminal law.
C. Rajagopalachari: I do not suppose at this stage these principles of
criminal law need be put here at all.
K. M. Munshi: It is not so for this reason. Generally c riminal laws are
passed by the legislature. This is intended against a specific grievance.
That which today is not an offence is made by the legislature into an
offence 6 months after. An act which was not an offence at the moment
it was committed, may after 6 months, as a political vendetta, be taken as
an offence, ex post facto.
Chairman: Clauses 28 and 29 are to be deleted.
K. M. Panikkar: I have given one example in the minute that I submit¬
ted that in many places the law of limitation is not the same. In one
State the law of limitation for promissory notes is 6 years, while in British
India it is 3 years. If this stands, it would be possible to get a decision
in that State court for a promissory note which had become unclaimable
in British India and yet get that decision and then have it executed in
British India.
K. M. Munshi : There may be a birth register in one province and it
will have to be proved in the other. The other unit may say “I refuse
to recognize. You are not bom.” The marriage register in one province
may differ from another. The other province may refuse to recognize
marriage. If there is a Union the citizenship rights will be recognized
throughout. Do we want to have these units coming to a treaty as at
present? No. We want one Union, one citizenship and if a citizen gets
a judgment in one court he can enforce it in the other.
Chairman: If a Bikaner subject borrows money in Bombay then the
limitation is Bombay limitation. Therefore when the Bombay decree is
passed he goes to Bikaner although he borrowed money in Bombay.
C. Rajagopalachari: It is provided “subject to such conditions as may
be imposed by the law of the Union.”
Govind Bailabh Pant: This clause has also been adopted by the Union
Powers Committee.
Secretary: As regards clause 30 the Minorities Committee have said the
privilege of these writs shall not be suspended unless when in cases of
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rebellion or invasion or other graive emergency, the public safety may
require it.
C. Rajagopalachari: Is it necessary for us to tie down the Supreme
Court to the particular writs which have been prevailing in the various
countries of the world? It is quite possible that they may have their own
procedure.
Alladi Krishnaswami Ayyar: I submit. Sir, that having regard to the
varying nature of the rights and existence of innumerable courts all over
the country, to go and say that in the first instance you go and move the
Supreme Court for the enforcement of any of these rights will not work
at all in practice. I can understand a reversionary appellate jurisdiction
being vested in the Supreme Court appropriate to the nature of the parti¬
cular right guaranteed, but a general provision like this, namely the right
to move the Supreme Court for the enforcement of any of the rights gua¬
ranteed by this part, is what I take strong exception to. Then for the purpose
of enforcing any such rights the Supreme Court shall have the power to
issue directions in the nature of writs. These are writs of varying character.
K. M. Munshi: I am quite prepared to admit that what you have said
is more appropriate. This was provided by us in the Fundamental Rights
Committee to which Sir Alladi has suggested two amendments and which,
I said, are appropriate.
Chairman: You, Alladi and Dr. Ambedkar all erf you draft this finally
and bring in the afternoon.
Clause 32 is agreed to.
K. M. Munshi: Certain justiciable rights for the minorities have been
proposed in minorities educational rights. That may be taken before the
non-justiciable rights.
The Advisory Committee reassembled at 3 p.m. with Sardar Vallabhbhai
Patel in the Chair.
K. M. Munshi: We have to take up Part III of the Annexure to the
Interim Report of the Minorities Sub-Committee.*
Chairman: What is the procedure?
K. M. Munshi: It was originally proposed that after the Fundamental
Rights Sub-Committee finished its work, the report may be sent to the
Minorities Sub-Committee, for, in some fundamental rights the minorities
are interested. They discussed only from the point of view erf minorities.
Alladi Krishnaswami Ayyar: In so far as any fundamental rights bear
upon the question of minorities rights, that will come up here. Otherwise,
the minorities rights will be considered separately.
Chairman: We take up Part III (i).
Shrimati Hansa Mehta: Do they come under Part I or Part II?
K. M. Munshi: Part I. They are justiciable rights.
•See Document No. 5(it>.
19
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FRAMING OF INDIA’S CONSTITUTION
Alladi Krishnaswami Ayyar: I think this is unnecessary. How can any*
body interfere with the use of my mother tongue?
K. M. Munshi: I shall inform the House how this came to be drafted.
This was taken from the minorities rights in the Polish Treaty which came
to form part of the Polish Constitution. Attempts were made in Europe
and other places to prevent the minorities from using their own language
or studying in their own language. Therefore this has become what is
called the classical rights of minorities. For instance, in Bombay, a Marathi
speaking province, there are Bengali speaking people.
Chairman: The clause has stated rights as if there can be any prohibi¬
tion to talking in their own language. How can that be? Of course, all
citizens are entitled to use their mother tongue.
Jaipal Singh: We have got a language that is very different from any
other language. 1 am afraid we should have some clause like this or the
second.
Chairman: Are you prevented from talking in your language?
K. M. Munshi: In small states with a democratic majority, there has
been a tendency to stop people from using it.
Chairman: In schools or in the house?
K. M. Munshi: A democratic legislative majority may stop it This
clause has been brought into existence for that purpose.
Chairman: Every man shall be entitled to use his own eyes. This looks
like that.
Alladi Krishnaswami Ayyar: I am a Tamil, for generations settled in
Andhra. Andhra is my adopted country. We speak a kind of hybrid
Tamil in our house. I read and write Telugu because Telugu is the langu¬
age of my province. Some of my girls are reading Tamil. Nobody can
prevent this.
Ujjal Singh: Supposing the minorities have got their own institutions
Chairman: Institutions are not mentioned here.
Ujjal Singh: I think this covers institutions. The clause says, all citi¬
zens are entitled to use their mother tongue and the script thereof and to
adopt, study or use any other language and script of their choice. The
study must be in institutions. It cannot be otherwise. They should be
free to adopt their mother tongue for education and a script of their own
choice. The State should not penalize or stop the use of the mother tongue
and their own script by a minority.
Bakshi Tek Chand: That is covered by clause (iv).
Jaipal Singh: It is necessary that with suitable alterations clause (i)
should remain.
K. M. Munshi: I think clause (ii) is more comprehensive.
Alladi Krishnaswami Ayyar: If the idea is that a minority should have
a school of its own, that is a different point. If it is a respectable minority
in a certain place, some kind of protection must be given to them so that
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they may have their primary or other schools and institutions. You can*
not provide education for two people.
K. M. Munshi: This is a general right. Conceivably an order may be
made in some State or other that no newspaper should be allowed to
issue in any particular language. What is the remedy of those people ?
A Uadi Krishnaswami Ayyar: Freedom of speech, expression, and every
kind of freedom has been guaranteed under the Constitution.
Frank Anthony: We are dealing with an absolute right and not the right
of two people as Sir Alladi has stated. We are laying down the rights of
minorities to use their mother tongue.
Chairman: This is not a case of minority. Please look at the clause.
Shall we delete the first clause?
K. Af. Munshi: It will only affect Hyderabad and nowhere else.
Chairman: Clause (i) is deleted.
We will take up clause (ii).
Ujjal Singh: Even if clause (i) is deleted, after the word ’language*, the
word ’script* may be added in the second clause.
K. M. Munshi: We have not used the word ‘Government’ anywhere else.
We may substitute the word “State” for Government.
B. R. Ambedkar: I may put it this way. “No Act or Regulation may
be enacted that will affect prejudicially.”
Govind Ballabh Pant: Are these justiciable rights?
Chairman: Of course. They are justiciable rights.
Govind Ballabh Pant: I think this should be put in Part II. It will be
difficult to interpret it in a court of law. The language should be precise
and the proposal intelligible and enforceable in a court of law. This may
be made a principle to be kept in view by the legislature.
K. M. Munshi: This clause was taken from a bigger clause and certain
words were condensed into the term “oppressive” leaving it to the Supreme
Court to decide whether it is oppressive. You destroy the efficacy at the
whole thing.
Govind Ballabh Pant: I do not see how this loses its efficacy.
K. M. Munshi: For the simple reason that it is a justiciable right.
Govind Ballabh Pant: I suggest that this should be in Part II.
M. Ruthnaswamy: The minorities will never agree to such a thing.
Ujjal Singh: I think Pantji does not realise the difficulty of the minorities.
Let the Supreme Court interpret all these things.
Alladi Krishnaswami Ayyar: I should like to omit the word “adequately”.
This introduces an uncertainty into the clause.
Chairman : As amended, die clause reads: “Minorities in every unit shall
be protected in respect of their language, script and culture, and no laws
or regulations may be enacted that may operate oppressively or prejudicially
in this respect.”
This clause is accepted.
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We take up clause (iii).
K. M. Murtshi: Generally, we in India consider a religious minority
as a minority. There may be linguistic minorities. The question about
Anglo-Indians arises. The word ‘community’ has been put in to make it
more comprehensive.
Alladi Krishnaswami Ayyar: This has been already brought in as a
fundamental right.
Ujjal Singh: If this is allowed, clause 19 may be deleted.
K. M. Panikkar: They are different. Clause 19 deals with the majority.
This clause deals with an express right of minorities.
Many Members: Both the clauses should stand.
Govind Ballabh Pant: If this clause is to stand, it is vague to say, “no
minority shall be deprived of its rights.”
Many Members: Right in regard to admission to schools.
Govind Ballabh Pant: The words “deprived of its rights” may be omitted.
It is a repetition of what we have already said.
Chairman: The clause as amended is this: “No minority whether based
on religion, community or language shall be discriminated against in regard
to the admission into State educational institutions, nor shall any religious
instruction be compulsorily imposed on them.” This clause as amended is
accepted. We will take up clause (iv).
K. M. Munshi: The point is this. All minorities must be treated equally
with regard to State aid.
Govind Ballabh Pant: It goes beyond that. It says, “All minorities
whether of religion, community or language shall be free in any unit to
establish and administer educational institutions of their choice...”
K. M. Munshi: That is with regard to having their own schools and
they shall be entitled to State aid as is given to similar aided
institutions.
Alladi Krishnaswami Ayyar: What is the meaning of minorities of reli¬
gion? I do not understand. It is a question of language.
Frank Anthony: I would like to have it amended thus: “and they shall
be entitled to State aid as determined by the State” instead of “in the same
manner and measure...” The government may decide to give special aid
to the Scheduled Classes.
Ujjal Singh: That would defeat the very object of the clause.
Frank Anthony: But this clause would preclude the government from
giving even if they decide to give. The government will say, “If we give
you, then, every community will demand the same thing.”
Govind Ballabh Pant: If the government do not want to give, they may
put forward any pretext.
Frank Anthony: I move the amendment. As amended, the clause would
be: “All minorities whether of religion, community or language shall be
free in any unit to establish and administer educational institutions of their
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281
choice, and they shall be entitled to State aid as determined by the State.”
The rest goes out.
Purshottamdas Tandon: I would like to make it “such institutions”
instead of repeating the whole again.
Rajkumari Amrit Kaur: I raised this point in the Minorities Sub-Com¬
mittee. We are perpetuating communal institutions. My belief is that the
State aid should not be forthcoming to communal institutions. That way
we will be perpetuating communal institutions for ever.
Chairman: You suggest that this clause should be dropped.
A Uadi Krishnaswami Ayyar: I support it.
B. R. Ambedkar: Supposing for instance, the State introduces compul¬
sory primary education. Notwithstanding this, if a minority community,
whether religious or communal, thinks that it should also conduct its own
system of primary education, will this clause make it obligatory upon the
State to provide aid to these schools? What is the position?
K. M. Panikkar: Compulsory primary education shall be provided within
a period of years.
Chairman: The first proposition is whether this clause should) be retained
or not?
B. R. Ambedkar: There are two propositions in this. The first is whether
every minority, religious, communal or linguistic, should have the liberty
to establish its own educational institutions. That is the first question.
The second proposition is this: Whether if the State decides to give any
grant, it should treat all such institutions equally. If these two propositions
are kept in mind, I think we should be able to arrive at some formula.
My suggestion is that we stop with the word ‘choice’ and then state in a
different sentence “Where the State decides to give grants to such institu¬
tions, it shall treat them equally without discrimination.”
K. M. Munshi: May I just draw attention to the original? “No legisla¬
tion providing State aid for schools shall discriminate against schools under
the management of minorities whether based on religion or language.”
Raikumrtri Amrit Kaur: Communal schools will still remain. I am
against it.
Chairman: We shall now take votes on the question of the retention
of this clause in some form. If the decision is that it should be retained
in some form, then we shall go to the proposition. (There was a majority,
for the retention of the clause.)
The form now proposed is in two parts:
(a) All minorities whether based on religion, community or language
shall be free in any unit to establish and administer educational
institutions of their choice.
(b) No legislation providing State aid for schools shall discriminate
against schools under the management of minorities whether based
on religion, community or language.
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FRAMING OF ININA’S CONSTITUTION
K. M. Munshi: This clause is very clear. If the State refuses to give
aid to all schools and runs schools for every citizen, then this clause does
not come into operation, but if the State decides by legislation to assist
a, b. and c schools, then there should be no discrimination.
Ujjal Singh: Why ‘no legislation’? They can abolish all grants by
executive order.
K. M. Panikkar: Then shall we say, ‘The State shall not discriminate’?
Secretary: (Reads) “The State shall not while providing State aid to
schools disc rimina te against schools under the management of minorities
whether based on religion, community or language”.
Clause (vi) “Notwithstanding any custom, law, decree or usage, prescrip¬
tion or terms of dedication, no Hindu on grounds of caste, birth or
denomination shall be precluded from entering in educational institutions
dedicated or intended for the use of the Hindu community or any section
thereof”
A Uadi Krishnaswami Ayyar: If you are going to say, ‘any section there¬
of. you are going to strike at the root of all private benefaction.
Govind Battabh Pant: I propose that it be deleted.
(The clause was deleted).
Chairman: Now we go to the items left over. One is about Hindustani.
The second is about bearing arms. These have to be considered. What
I submit is that the non-justiciable rights may be considered at a later
stage for this reason. We do not know exactly whether we are legislating
for the whole of India or part of it. There might be different considera¬
tions arising with regard to these items. We have also not got the repre¬
sentatives of the Indian States. These are matters of social policy. What
I suggest is that the consideration of these non-justiciable rights may be
postponed by the Advisory Committee till after the 28th April when the
Constituent Assembly meets.
Frank Anthony: Clauses 23, 24 and 25; shall we consider them now?
Secretary: Clauses 23 and 24 were proposed to be considered with
Part n.
Clause 25. “Equal opportunities of education shall be open to all citizens:
Provided that nothing herein contained shall predude die State from
providing special facilities for educationally backward sections of the
population.”
Chairman: This was also dropped.
In Bombay, for example, there is the Grant Medical College. It naturally
takes boys from Bombay. If this clause is accepted. Bombay may be paying
for the education of other people. They have to prevent people coming
from outside because they pay for it.
K. M. Munshi: The idea is that they shall not make a distinction bet¬
ween the citizens of that place.
Chairman: Is this the best place for it?
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Alladi Krishnaswami Ayyar: This ought not to be under the justiciable
rights. If it is, then it will give rise to considerable difficulty.
Chairman: Shall we drop out this clause? (The majority of members
were for dropping die clause.) The only other question is the submission
of a report to the Constituent Assembly.
Baksfti Tek Chand: What about Part II ?
Chairman: That has been held over.
Syoma Prasad Mookerjee: We can call this an. interim report.
Chairman: The other portions which have been left over can be consider¬
ed at a later stage.
K. T. Shah: I want to raise the point of the needlessness of the distinc¬
tion between justiciable and non-justiciable rights. Can I raise that question
when we come to discuss Part II ?
Chairman: That there should be no distinction? Yes.
Frank Anthony: With your permission. Sir, I would like to raise the
question of ’minorities’ versus ‘classes’ in clause S. I have discussed it with
some of my friends and they too think that there is some substance in my
contention.
Chairman: We have already adopted it. If I reopen it now, that will be
discrimination in your favour.
B. R. Ambedkar: May I draw your attention to para 3 of the report
made to you by the Chairman of the Minorities Subcommittee?
Chairman: I have got a letter from Khan Abdul Samad Khan that the
following minute of dissent be presented. There can be no minute of dis¬
sent in this committee. It may be in your committee there. We have
passed this over by majority or by unanimous votes. You cannot give
minutes of dissent. You can move an amendment there. You are not
a member. Thai you can hardly give any minute.
Bakshi Tek Chand: He is not a member of the Constituent Assembly.
He is a member of the Advisory Committee.
B. R. Ambedkar: May I draw attention to paragraph 3 of the report
of the Chairman of the Minorities Committee? You will see from that
that there are certain other fundamental rights which from the minority point
of view may have to find a place in the Constitution. We have not had
time to consider these points and they will be raised in the meeting of the
Advisory Committee. This paragraph was inserted at my request because
I had for the Minorities Committee certain proposals to be included in
the Fundamental Rights Committee. As we had no time the Chairman
agreed that these might be kept back and considered at some later stage.
In view of that, I think it would be necessary for you to say that our
report is really an interim report. If you like I can read them, they are
very small and non-contentious.
Chairman: May I know when this Minorities Committee Report is to
be finalized ?
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FRAMING OF INDIA’S CONSTITUTION
P. K. Salve: A suggestion was made that after this committee we can
sit during this week. From tomorrow or day after if we are not sitting
here, we might meet and in any case before we meet in the Constituent
Assembly.
H. C. Mookherjee: If you look at the letter of the Chairman of the Funda¬
mental Rights Committee, in paragraph 7 the committee pointed out that
in respect of one or two matters the committee could not make up its
mind.
Chairman: That is different. If the committee is unable to make up its
mind, then the big committee will do so.
K. M. Munshi: This is final as it goes.
Chairman: On the whole I understand from the committee that so far
as Part I is concerned the major part of the work is done.
Govind Ballabh Pant: You may also mention, perhaps you intend doing
so, that matters of special policy were also proposed by certain members
and were brought to your notice as recommendations of the Fundamental
Rights Committee but their consideration has been postponed, so that the
members of the Constituent Assembly may not notice any omission regard¬
ing salient matters from your report.
R. K. Sidhwa: The Minorities Sub-Committee has not yet decided.
Chairman: That is their report.
K. M. Munshi: We have all three agreed to clause 30. May I read it.
The first clause is this. “The right to move the Supreme Court for the
enforcement of the rights guaranteed by this part is hereby guaranteed.”
We are all agreed to the second: “without prejudice to the powers that
may be vested in this behalf in other courts, the Supreme Court shall have
power to issue directions in the nature of the writs of habeas corpus,
mandamus, prohibition, quo warranto and certiorari appropriate to the
Tight mentioned in this part to be enforced.” This is a draft which we
agreed.
The third will run like this: “The privilege of these writs shall not be sus¬
pended unless when, in cases of rebellion or invasion, or other grave emer¬
gency, the public safety may require it”
We understood that the dispute was with regard to only clause 2. If
we do not guarantee the remedy, then it will not be competent for us to
put it in the fundamental rights. The right of enforcement is also a
fundamental right
A Uadi Krishnaswami Ayyar: What 1 mean is that to start with saying
that you must move the Supreme Court having regard to the wide nature
of this continent, you say something susceptible of the interpretation that
certiorari and other jurisdiction is more revisionary than original. There-
fore that will be considered in detail when we go into the Supreme Court
jurisdiction. If we go and say the right to move the Supreme Court is
guaranteed in respect of these rights, you commit yourself to the principle
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that every one of these obligations shall be in the nature of an original
application to the Supreme Court. I had another formula, namely so far
as the habeas corpus and the personal freedom is concerned you may in¬
clude the Supreme Court. In regard to the other remedy it must be left
to such law as the Union law might provide. To put it as “you shall
guarantee”, I think, would lead to complications. We shall consider this
tomorrow morning. He must have been under a bona fide and genuine
mistake. I was under a wrong impression; the mistake is mine and not my
friends’. I should like to consider the three clauses and try to place my
views before the committee, but that is a point on which I feel some
difficulty.
B. R. Ambedkar: I think Sir Alladi has not really understood the real
intention why clause 1 is put in this language. We have got to make a
distinction here. There is the right of resorting to the Supreme Court.
That is a difficult question. And the other question which is more im¬
portant is from what source shall the Supreme Court derive its authority?
Shall it derive its authority from the Constitution ? That is a fundamental
question. I am sure about it that a large majority of people who have
considered this matter are entirely of opinion that the jurisdiction of the
Supreme Court to issue those writs must be derived from the Constitution
so that no legislature under any circumstances except those mentioned in
the proviso namely, emergency, rebellion and so on, shall be entitled to
take away the right. To issue these writs we have also got the provision in
the Government of India Act that the Indian legislature may alter the
provisions contained in the chapter and we do not want that the powers
of the Supreme Court should be rendered illusory by the legislature, taking
this power. That is one of the reasons why this clause should remain as it
is.
Alladi Krishnaswami Ayyar: I wanted to leave the question to the
future Constitution because we are going to have the Supreme Court insti¬
tuted as a necessary part of the mechanism of the State. Therefore when
we are providing that this Supreme Court is constituted as a part of the
original Constitution, you will then decide what exactly is the various juris¬
diction which the Supreme Court will have.
K. M. Panikkar: On principle we are all agreed. Therefore there is
only the question of drafting. If the three legal luminaries meet and agree
on a formula...
Chairman: Rarely they do.
K. M. Panikkar: Can’t we leave it to your arbitration?
Secretary: There is one point to be considered. It arises out of the
Minorities Sub-Committee Report and deals with clause 35. sub-clause (1).
The Minorities Sub-Committee said that the word ’citizen’ instead
of ‘persons’ shall be substituted and the clause transferred to an appro¬
priate 0ace among the justiciable rights. They also suggested that a
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FRAMING OF INDIA’S CONSTITUTION
proviso be added making it clear that certain persons occupying a high
position in the State, if tried for an offence, may have to be subjected to
a special procedure.
K. Af. Munshi: The original words were "all persons shall be equal
before the law.” That of course is not correct. It should be ‘all citizens’.
This is a justiciable right, I submit. ‘Equality before the law* means that
before a court of law, every person shall be treated equal. This has been
accepted by British jurisprudence in that way. Now this is really taken
as a foundation for all non-discriminatory clauses which we have discuss¬
ed and always put first in all constitutions. It is only because every
citizen in a Republic is equal before the law that non-discrimination
follows.
We have also included an exception in the Minorities Sub-Committee
that the President of the Republic or the Governors of the States or the
Rulers of Indian States cannot be tried. Therefore certain personages
occupying certain high positions have to be exempted. There is no quar¬
rel about it, but if you do not put it in the first non-discriminatory clause,
you will land yourself in this great difficulty. The two ideas are entirely
different. No discrimination means equality of treatment by law and this
means that there should be no discrimination, that no person should
be exempt from the processes of law in the whole Union. In the whole
British jurisprudence this equality is the principal foundation and in our
jurisprudence if you put any non-justiciable right, it would be open to
argument.
A Uadi Krishnaswami Ayyar: We cannot forget certain provisions of
equality before the law when, you use British jurisprudence. There is no
question of fundamental rights or constitutional document. It is a salutary
principle which runs through every court and every enactment in British
jurisprudence but Mien you put it in the framework of a statute it be¬
comes difficult Take for example, the existing Penal Code which has
been worked for nearly 100 years. Let us take the provisions of the
Civil Procedure Code. Let us take the Criminal Procedure Code. How
are you going to put in it any justiciable thing that all men are equal?
How are you going to put in the general principle of British jurisprudence
that there should be no differentiation between man and man, that law is
no respecter of persons that all men are equal before the law?
K. M. Munshi: But it has been accepted in other constitutions.
Chairman: The question of transferring one from the other is not finally
closed. We shall consider if it is approved that some erf these clauses in
Part II are such as to be transferred to Part I.
I thank you all for the co-operation and courtesy. I have been a little
impatient because we have so much work to do. Unless we put forth all
our efforts and speed we cannot finish our programme before June, 1948.
(With a vote erf thanks to the Chair, the meeting terminated.)
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(V) MINUTES OF THE MEETINGS OF THE ADVISORY COMMITTEE
April 21-22, 1947
April 21, 1947
Present: The Hon’ble Sardar Vallabhbhai J. Patel (Chairman):
(2) Bakshi Sir Tek Chand; (3) Dr. Gopi Chand Bhargava; (4) Dr. Syama
Prasad Mookerjee; (5) Shri Prithvi Singh Azad; (6) Shri Dharam Prakash;
(7) Shri H. J. Khandekar; (8) The Hon’ble Shri Jagjivan Ram; (9) Shri P.
R. Thakur; (10) Dr. B. R. Ambedkar; (11) Shri V. I. Muniswami Pillay;
(12) Sardar Jogendar Singh; (13) Sardar Pratap Singh; (14) Sardar Ujjal
Singh; (IS) Gyani Kartar Singh; (16) Dr. H. C. Mookherjee; (17) Dr. Alban
D’Souza; (18) Shri P. K. Salve; (19) Shri J. L. P. Roche-Victoria;
(20) Mr. Frank Reginald Anthony; (21) Mr. M. V. H. Collins (Morning
only); (22) Shri R. K. Sidhwa; (23) Shri Rup Nath Brahma; (24) Khan
Abdul Samad Khan; (25) Shri Phool Bhan Shah; (26) Shri Devendra Natb
Samanta; (27) Acharya J. B. Kripalani (Morning only); (28) Shri Jaipal
Singh; (29) The Hon’ble Maulana Abul Kalam Azad (Morning only);
(30) The Hon’ble Shri Rajagopalachari; (31) Rajkumari Amrit Kaur;
(32) Shrimati Hansa Mehta; (33) The Hon’ble Pandit Govind Ballabb
Pant (Evening only); (34) The Hon’ble Shri Purshottamdas Tandon (Even¬
ing only); (35) Sir Alladi Krishnaswami Ayyar; (36) Shri K. T. Shah;
(37) Shri K. M. Munshi; (38) Mr. M. Ruthnaswamy; (39) Mr. Raj Krushna
Bose; (40) Sardar K. M. Panikkar.
In attendance: (1) Mr. H. V. R. Iengar, Secretary; (2) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (3) Mr. Jugal Kishore Khanna, Deputy Secretary.
After some preliminary observations by the Chairman, the clauses recom¬
mended by the Fundamental Rights Sub-Committee were taken up one by one.
Clause 1: Accepted.
Clause 2: Approved in principle; subject to a note to it being drafted
to make it dear that the effect of the fundamental rights on the existing
laws will have to be carefully studied before any final decision is taken
to incorporate them in the Constitution as fundamental rights.
Clause 3: Should be redrafted as follows :
Every person bom in the Union or naturalized in the Union according to
its laws and subject to the jurisdiction thereof shall be a citizen of the
Lnion.
Clauses 4, 5 and 6: It was decided that a committee consisting of Mr.
C. Rajagopalachari, Dr. Ambedkar, Sardar Panikkar and Mr. Munshi
should redraft these clauses and submit them to the main committee.
Clause 7: It was dedded to redraft this clause as follows :
Untouchability in any form is abolished and the imposition of any dis¬
ability on that account shall be an offence.
Clause 8: It was decided to redraft this clause as follows;
No heritable titles shall be conferred by the Union.
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FRAMING OF INDIA’S CONSTITUTION
No citizen of the Union and no person holding any office of profit or
trust under the State shall, without the consent of the Union Government,
accept any present, emoluments, office or title of any kind from any foreign
State.
Clause 9: Consideration erf this was postponed.
Clause 10: Preamble accepted.
Para (a): The proviso should be redrafted as follows:
Provision may be made by law to make the publication or utterance of
seditious, obscene, blasphemous, slanderous, libellous or defamatory mat*
ter actionable or punishable.
Para (b): Accepted.
Para (c); Accepted.
Para id) was decided to be deleted.
Para (e): Accepted.
Para (/); After the words “in public interest”, it was decided to add “in¬
cluding the protection of minority groups and tribes”.
Clause 10: It was suggested that a new sub-clause be added giving
every citizen the right to bear arms according to the law of the Union. The
necessity of there being a uniformity in the arms laws throughout the Union
was also stressed.
After discussion, it was decided that this matter may be held over for
subsequent decision.
Clause 11: Deleted.
Clause 12: Should be redrafted to read :
No person shall be deprived of his life, or liberty, without due process
of law, nor shall any person be denied the equal treatment of the laws
within the territories of the Union:
Provided that nothing herein contained shall detract from the powers
of the Union Legislature in respect of foreigners.
Clause 13 to be deleted from the fundamental rights, but it should
be recommended by the Chairman in his report to the Constituent
Assembly on behalf of the committee, that it be made a part of the
Union Constitution.
Clause 14(1): Approved
Clause 14(2): Ddeted.
Clause 15 should be redrafted as follows :
(1) (a) Traffic in human beings.
(b) Forced labour in any form including begar, and involuntary servitude
except as a punishment for crime whereof the party shall have been duly
convicted, are hereby prohibited, and any contravention of this prohibition
shall be an offence.
(Note: The explanation under this clause shall be redrafted, for consi¬
deration by the committee, by a sub-committee consisting of
Dr. B. R. Ambedkar, Messrs Rajagopalacbari and Pant.)
(2) Deleted.
(3) To be renumbered (2).
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The committee shall meet again at 10 a.m. tomorrow at the same place.
April 22, 1947
Present : (1) The Hon’ble Sardar Vallabhbhai J. Patel (Chairman)'. (2) Bale-
shi Sir Tek Chand; (3) Dr. Gopi Chand Bhargava; (4) Dr. Syama Prasad Moo-
kerjee; (5) Shri Prithvi Singh Azad; (6) Shri Dharam Prakash; (7) Shri H. J.
Khandekar (Attended morning sitting only); (8) The Hon’ble Shri Jagjivan
Ram; (9) Shri P. R. Thakur; (10) Dr. B. R. Ambedkar; (11) Shri V. I.
Muniswami Pillay; (12) Sardar Jogendar Singh; (13) Sardar Ujjal Singh;
(14) Sardar Pratap Singh; (15) Dr. H. C. Mookherjee; (16) Dr. Alban
D’Souza (Attended morning sitting only); (17) Shri P. K. Salve; (18) Shri
J. L. P. Rochc-Victoria; (19) Mr. Frank Reginald Anthony; (20) Mr. M.V.H.
Collins; (21) Shri R. K. Sidhwa; (22) Shri Rup Nath Brahma; (23) Khan
Abdul Samad Khan; (24) Shri Phool Bhan Shah; (25) Shri Devendra Nath
Samanta; (26) Acharya J. B. Kripalani (Attended morning sitting only);
(27) Shri Jaipal Singh; (28) The Hon’ble Shri Rajagopalachari; (29) Rajkumari
Amrit Kaur; (30) Shrimati Hansa Mehta; (31) The Hon’ble Pandit Govind
Ballabh Pant; (32) The Hon’ble Shri Purshottamdas Tandoo; (33) Sir
Alladi Krishnaswami Ayyar; (34) Shri K. T. Shah; (35) Shri K. M. Munshi;
(36) Mr. M. Ruthnaswamy; (37) Mr. Raj Krushna Bose; (38) Sardar K. M.
Panikkar.
In attendance: (1) Mr. H. V. R. Iengar, Secretary; (2) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (3) Mr. Jugal Kishore Khanna, Deputy Secretary.
The minutes of the meeting held yesterday were approved.
2. The drafts prepared by the sub-committee appointed yesterday to
consider clauses 4, 5 and 6 were then taken up and the following decisions
readied :
Clause 4 should be redrafted as follows :
Clause 4(1) ; The State shall make no discrimination against any citizen
on grounds of religion, race, caste or sex.
(2) There shall be no discrimination against any dtizen on any ground
of religion, race, caste or sex in regard to :
(a) access to trading establishments including public restaurants and
hotels,
(b) the use of wells, tanks, roads and places of public resort main¬
tained wholly or partly out of public funds or dedicated to the use
of the general public :
Provided that nothing contained in this clause shall prevent separate
provision being made for women and children.
Clause 5: This clause was passed in the following form :
There shall be equality of opportunity for all citizens in matters of public
employment and in the exercise or carrying on of any occupation, trade,
business or profession.
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FRAMING OF INDIA'S CONSTITUTION
Nothing herein contained shall prevent the State from making provision
for reservations in favour of classes who, in the opinion of the State, are
not adequately represented in the public services.
No citizen shall on grounds only of religion, race, caste, sex, descent, place
of birth or any of them be ineligible for public office or be prohibited
from acquiring, holding or disposing of property or exercising or
carrying on any occupation, trade, business or profession within
the Union.
Nothing herein contained shall prevent a law being made prescribing
that the incumbent of an office to manage, administer or superintend
the affairs of a religious or denominational institution or the member of
the governing body thereof shall be a member of that particular religion
or denomination.
Clause 6 was directed to be deleted subject to the understanding that
the last portion dealing with separate educational institutions for boys and
girls would be considered when the educational clauses were taken up.
The recommendation of the sub-committee to amend clause 2 by adding
after the word “laws” the words “notifications, regulations, custom” was
accepted.
3. The proposals of the sub-committee appointed to consider clause IS
were then taken up and accepted by the committee. Clause 15 as amended
by the sub-committee reads as follows :
15. (a) Traffic in human beings, and
(b) forced labour in any form including begar, and involuntary servi¬
tude except as a punishment for crime whereof the party shall have
been duly convicted
arc hereby prohibited and any contravention of this prohibition shall be
an offence.
Explanation .—Nothing in this sub-clause shall prevent the State from
imposing compulsory service for public purposes without any discrimina¬
tion on the ground of race, religion, caste or class.
15A. No child below the age of 14 years shall be engaged to work in any
factory, mine or any other hazardous employment
Explanation .—Nothing in this shall prejudice any educational programme
or activity involving compulsory labour.
4. Clause 16 should be redrafted as follows:
All persons are equally entitled to freedom of conscience and the rigbt
freely to profess, practise and propagate religion subject to public order,
morality or health, and to the other provisions of this chapter.
(Note: It was agreed that Messrs Rajagopalachari and S. P. Mookerjee should
submit a draft proviso to this clause permitting social legislation which may affect
religious practice.)
Explanation 1 .—The wearing and carrying of Kirpans shall be deemed to
be included in the profession of the Sikh religion.
Explanation 2 .—The above rights shall not include any economic,
financial, political or other secular activities that may be associated with
religious practice,
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291
Explanation 3. —The freedom of religious practice guaranteed in this
clause shall not debar the State from enacting laws for the purpose of social
welfare and reform.
(.Note: The decision to insert the words “religious practice” was taken by a
majority of 2 votes.)
Clause 17 was passed in the following form:
Every religious denomination shall have the right to manage its own
affairs in matters of religion and, subject to the general law, to own,
acquire and administer property and institutions for religious or chari¬
table purposes.
The sub-para dealing with the right to build {daces of worship was
deleted.
Clause 18 was passed in the following form :
No person may be compelled to pay taxes the proceeds of which are
specifically appropriated to further or maintain any particular religion or
denomination.
Clause 19: Accepted.
Clause 20: Deleted.
Clause 21: Deleted.
Clause 22 should be redrafted as follows :
Conversion from one religion to another brought about by coercion or
undue influence shall not be recognized by law.
Clauses 23. 24 and 25: Deleted from justiciable fundamental rights.
Clause 26: Pandit Govind Ballabh Pant moved that for the words
“public use”, the words “governmental purposes” should be substituted.
After much discussion, the amendment was put to vote and lost by a
majority of two votes.
It was decided to delete the word “just”.
Clause 27: Accepted.
Clause 28: Deleted.
Clause 29: Accepted.
Clause 30: It was decided that a small committee consisting of Dr. B. R
Ambedkar, Sir Alladi Krishnaswami Ayyar and Mr. K. M. Munshi should
redraft this clause.
Clause 31: Accepted.
Clause 32: Accepted.
5. The recommendations contained in Part III erf the Annexure to the
Interim Report of the Minorities Sub-Committee were then considered;
and it was decided to insert the following clauses among the justiciable
fundamental rights:
(1) Minorities in every unit shall be protected in respect of their langu¬
age, script and culture, and no laws or regulations may be enacted
that may operate oppressively or prejudicially in this respect.
(2) No minority whether based on religion, community or language
shall be discriminated against in regard to the admission into State
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FRAMING OF INDIA’S CONSTITUTION
educational institutions, nor shall any religious instruction be com¬
pulsorily imposed on them.
(3) (a) All minorities whether based on religion, community or
language shall be free in any unit to establish and administer
educational institutions of their choice.
(b) The State shall not while providing State aid to schools discrimi¬
nate against schools under the management of minorities whether
based on religion, community or language.
Fundamental Rights Sub-Committee’s Recommendations
6. Clause 25 was further considered, and it was decided to omit it.
Clause 30 was accepted in principle, and it was decided to authorize the
Chairman to incorporate it as revised by a sub-committee consisting of
Sir Alladi Krishnaswami Ayyar, Dr. B. R. Ambedkar and Mr. K. M. Munshi
in the justiciable fundamental rights.
Clause 35: The recommendation of the Minorities Sub-Committee on
clause 35, sub-clause (1), was considered, but decision on it was postponed.
7. It was decided to postpone consideration of the clauses in Part II of
the recommendations of the Fundamental Rights Sub-Committee.
8. Finally, the committee authorized the Chairman to submit a report
on their behalf to the Constituent Assembly after it was considered by a
sub-committee consisting of Pandit Govind Ballabh Pant, Sir Alladi Krishna¬
swami Ayyar, Dr. B. R. Ambedkar and Mr. K. M. Munshi.
Dr. Ambedkar, in this connection, drew attention to paragraph 3 of the
Interim Report of the Minorities Sub-Committee, and asked that it be
mentioned in this committee’s report to the Constituent Assembly. The
Chairman promised to bear this in mind.
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ADVISORY COMMITTEE REPORTS ON
FUNDAMENTAL RIGHTS
April-August 1947
[The Sub-Committee on Fundamental Rights, had inter alia recom¬
mended (see Document No. 4) that the list of fundamental rights should
be prepared in two parts, the first part consisting of rights enforceable
by appropriate legal process (justiciable rights) and the second part
consisting of directive principles of social policy ( non-justiciable rights).
The Advisory Committee accepted the recommendation and submitted
on April 23, 1947 an interim report which confined itself to an exami¬
nation only of the justiciable rights, Le., fundamental rights strictly so
called. The Interim Report was presented to the Constituent Assembly
on April 29. The recommendations were discussed for four days —
April 29-30 and May 1-2—and adopted with certain modifications;
however, clause 11 (traffic in human beings, begar etc.), before being
adopted, had to be referred to an ad hoc committee and clauses 16
(religious instruction in schools), 17 (religious conversion ), and 18(2)
(admission to educational institutions on grounds of religion, commu¬
nity and language) were referred back to the Advisory Committee for
re-examination and report. The Committee submitted a supplement¬
ary report on August 25 incorporating its recommendations on the
three clauses and a list of the fundamental principles of governance
(non-justiciable rights). The supplementary report was presented to
the Assembly and discussed on August 30. The recommendations in re¬
gard to clauses 17 and 18(2) were adopted by the Assembly. In regard to
clause 16, an ad hoc committee was appointed to report to the Drafting
Committee, and the consideration of the list of non-justiciable rights
was deferred. The texts of the Interim Report and the Supplementary
Report of the Advisory Committee on the subject of fundamental
rights, the ad hoc Committee Report on clause 11, and the clauses
on fundamental rights as adopted by the Assembly during April-May,
are reproduced below.]
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FRAMING OF INDIA’S CONSTITUTION
(i) INTERIM REPORT OF THE ADVISORY COMMITTEE ON THE
SUBJECT OF FUNDAMENTAL RIGHTS
April 23. 1947
From
The Hon’ble Sardar VALLABHBHAI PATEL.
Chairman, Advisory Committee on Minorities.
Fundamental Rights, etc.
To
The President,
Constituent Assembly of India.
Sir,
On behalf of the members of the Advisory Committee appointed by the
Constituent Assembly of India on the 24th January, 1947,1 have the honour
to submit this interim report on fundamental rights. In coming to its con¬
clusions, the committee has taken into consideration not merely the report
of the Sub-Committee on Fundamental Rights but also the comments thereon
of the Minorities Sub-Committee.
2. The Fundamental Rights Sub-Committee recommended that the list ot
fundamental rights should be prepared in two parts, the first part consisting
of rights enforceable by appropriate legal process and the second consisting
of directive principles of social policy which, though not enforceable in
courts, are nevertheless to be regarded as fundamental in the governance of
the country. On these latter, we propose to submit a subsequent report; at
present, we have confined ourselves to an examination only of the justici¬
able fundamental rights.
3. We attach great importance to the Constitution making these rights
justiciable. The right of the citizen to be protected in certain matters is a
special feature of the American Constitution and the more recent democratic
constitutions. In the portion of the Constitution Act dealing with the
powers and jurisdiction of the Supreme Court, suitable and ade¬
quate provision will have to be made to define the scope of the remedies
for the enforcement of these fundamental rights. These remedies have been
indicated in general terms in clause 22 of the Annexure.
4. Clause 20 of the Statement of May 16, 1946, contemplates the possibi¬
lity of distributing fundamental rights between the constitutions of the Union,
the groups, if any, and the units. We are of the opinion that fundamental
rights of the citizens'of the Union would have no value if they differed
from group to group or from unit to unit or are not uniformly enforceable.
We recommend that the rights set out in the Annexure to thi 9 report be
incorporated in the Constitution so as to be binding upon all authorities,
whether of the Union or the units.
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ADVISORY COMMITTEE REPORTS ON FUNDAMENTAL RIGHTS
295
5. Clause 10 deals with the freedom, throughout the Union, of trade,
commerce and intercourse between the citizens. In dealing with this clause
we have taken into account the fact that several Indian States depend upon
internal customs for a considerable part of their revenue and it may not be
easy for them to abolish such duties immediately on the coming into force
of the Constitution Act. We, therefore, consider that it would be reasonable
for the Union to enter into agreements with such States, in the light of their
existing rights, with a view to giving them time, up to a maximum period
to be prescribed by the Constitution, by which internal customs could be
eliminated and complete free trade established within the Union.
6. We have made a special provision in regard to full faith and credit
being given to the public Acts, records and judicial proceedings of the Union
in every unit and for the judgments and orders of one unit being enforced
in another unit. We regard this provision as very important and appro¬
priately falling within the scope of fundamental rights.
7. Cause 2 lays down that all existing laws, regulations, notifications,
custom or usage in force within the territories of the Union inconsistent
with the fundamental rights shall stand abrogated to the extent of such
inconsistency. While in the course of our discussions and proceedings we
have kept in view the provisions of existing Statute law, we have not had
sufficient time to examine in detail the effect of this clause on the mass of
existing legislation. We recommend that such an examination be undertaken
before this clause is finally inserted in the Constitution.
8. The Fundamental Rights Sub-Committee was of the opinion that the
right of the citizen to have redress against the State in a court of law shall
not be fettered by undue restrictions. That sub-committee was not able,
however, to draft a suitable formula as the matter requires more investiga¬
tion than was possible in the time at its disposal. It was also suggested
during our deliberations that certain additional fundamental rights should
be inserted in the Constitution. We have not had the time to consider these
matters; we shall do so in due course and incorporate any recommendations
we may have to make on them in our next report.
9. The Fundamental Rights Sub-Committee and the Minorities Sub¬
committee were agreed that the following should be included in the list of
fundamental rights:
Every citizen not below 21 years of age shall have the right to vote at
any election to the legislature of the Union and of any unit thereof, or,
where the legislature is bicameral, to the lower chamber of the legislature,
subject to such disqualifications on the ground of mental incapacity, cor¬
rupt practice or crime as may be imposed, and subject to such qualifica¬
tions relating to residence within the appropriate constituency as may be
required, by or under the law.
(2) The law shall provide for free and secret voting and for periodical
elections to the legislature.
(3) The superintendence, direction and control of all elections to the
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FRAMING OF INDIA'S CONSTITUTION
legislature, whether of the Union or of a unit, including the appointment of
election tribunals, shall be vested in an election commission for the Union
or the unit, as the case may be, appointed, in all cases, in accordance
with the law of the Union.
While agreeing in principle with this clause, we recommend that instead
of being included in the list of fundamental rights, it should find a place
in some other part of the Constitution.
I have etc.
Vallabhbhai Patbl,
Chairman .
Advisory Committee on Minorities ,
Fundamental Rights , etc .
ANNEXURE
JUSTICIABLE FUNDAMENTAL RIGHTS
Definition
1. Unless the context otherwise requires—
(i) “The State” includes the legislatures and the governments of the Union and
the units and all local or other authorities within the territories of the Union.
(ii) “The Union” means the Union of India.
(iii) “The law of the Union” includes any law made by the Union legislature and
any existing Indian law as in force within the Union or any part thereof.
Application of Laws
2. All existing laws, notifications, regulations, customs or usages in force within
the territories of the Union inconsistent with the rights guaranteed under this part
of the Constitution shall stand abrogated to the extent of such inconsistency, nor
shall the Union or any unit make any law taking away or abridging any such right
Citizenship
3. Every person bom in the Union or naturalized in the Union according to its
laws and subject to the jurisdiction thereof shall be a citizen of the Union.
Rights of equality
4. (1) The State shall make no discrimination against any citizen on grounds of
religion, race, caste or sex.
(2) There shall be no discrimination against any citizen on any ground of
religion, race, caste or sex in regard to—
(a) access to trading establishments including public restaurants and hotels.
(b) the use of wells, tanks, roads and places of public resort maintained wholly
or partly out of public funds or dedicated to the use of the general public:
Provided that nothing contained in this clause shall prevent separate provision
being made for women and children.
5. There shall be equality of opportunity for all citizens in matters of public
employment and in the exercise of carrying on of any occupation, trade, business or
profession.
Nothing herein contained shall prevent the State from making provision for
reservations in favour of classes who, in the opinion of the State, are not adequately
represented in the public services.
No citizen shall on grounds only of religion, race, caste, sex, descent, place of
birth or any of them be ineligible for public office or be prohibited from acquiring.
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297
holding or disposing of property or exercising or carrying on any occupation, trade,
business, or profession within the Union.
Nothing herein contained shall prevent a law being made prescribing that the
incumbent of an office to manage, administer or superintend the affairs of a religious
or denominational institution or the member of the governing body thereof shall
be a member of that particular religion or denomination.
6. “Untouchability” in any form is abolished and the imposition of any dis¬
ability on that account shall be an offence.
7. No heritable title shall be conferred by the Union.
No citizen of the Union and no person holding any office of profit or trust under
the State shall, without the consent of the Union Government accept any present,
emoluments, office, or title of any kind from any foreign State.
Rights of freedom
8. There shall be liberty for the exercise of the following rights subject to public
order and morality or to the existence of grave emergency declared to be such by the
Government of the Union or the unit concerned whereby the security of the Union
or the unit, as the case may he, is threatened :
(a) The right of every citizen to freedom of speech and expression :
Provision may be made by law to make the publication or utterance of sediti¬
ous, obscene, blasphemous, slanderous, libellous or defamatory matter action¬
able or punishable.
(b) The right of the citizens to assemble peaceably and without arms:
Provision may be made by law to prevent or control meetings which are likely
to cause a breach of the peace or are a danger or nuisance to the general
public or to prevent or control meetings in the vicinity of any chamber of
a legislature.
(c) The right of citizens to form associations or unions:
Provision may be made by law to regulate and control in the public interest
the exercise of the foregoing right provided that no such provision shall
contain any political, religious or class discrimination.
(d) The right of every citizen to move freely throughout the Union;
(e) The right of every citizen to reside and settle in any part of the Union, to
acquire property and to follow any occupation, trade, business or profession:
Provision may be made by law to impose such reasonable restrictions as may be
necessary in the public interest including the protection of minorities and tribes.
9. No person shall be deprived of his life, or liberty, without due process of law
nor shall any person be denied the equal treatment of the laws within the territories
of the Union:
Provided that nothing herein contained shall detract from the powers of the
Union Legislature in respect of foreigners.
10. Subject to regulation by the law of the Union, trade, commerce, and inter¬
course among the units by and between the citizens shall he free:
Provided that any unit may by law impose reasonable restrictions in the interest
of public order, morality or health or in an emergency:
Provided that nothing in this section shall prevent any unit from imposing on
goods imported from other units the same duties and taxes to which the goods pro¬
duced in the unit are subject:
Provided further that no preference shall be given by any regulation of commerce
or revenue by a unit to one unit over another.
11. (a) Traffic in human beings, and
(b) forced labour in any form including be gar and involuntary servitude except
as a punishment for crime whereof the party shall have been duly convicted,
are hereby prohibited and any contravention of this prohibition shall be an offence.
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Explanation. —Nothing in this sub-clause shall prevent the State from imposing
compulsory service for public purposes without any discrimination on the ground of
race, religion, caste or class.
12. No child below the age of 14 years shall be engaged to work in any factory,
mine or any other hazardous employment
Explanation. —Nothing in this clause shall prejudice any educational programme or
activity involving compulsory labour.
Rights relating to religion
13. All persons are equally entitled to freedom of conscience, and the right freely
to profess, practise and propagate religion subject to public order, morality or health,
and to the other provisions of this chapter.
Explanation L —The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion.
Explanation 2 .—The above rights shall not include any economic, financial,
political or other secular activities that may be associated with religious practice.
Explanation 3 .—The freedom of religious practice guaranteed in this clause shall
not debar the State from enacting laws for the purpose of social welfare and reform.
14. Every religious denomination shall have the right to manage its own affairs
in matters of religion and subject to the general law, to own, acquire and administer
property, movable and immovable, and to establish and maintain institutions for
religious or charitable purposes.
15. No person may be compelled to pay taxes, the proceeds of which are
specifically appropriated to further or maintain any particular religion or denomination.
16. No person attending any school maintained or receiving aid out of public funds
shall be compelled to take part in the religious instruction that may be given in the
school or to attend religious worship held in the school or in premises attached thereto.
17. Conversion from one religion to another brought about by coercion or undue
influence shall not be recognised by law.
Cultural and Educational Rights
18. (1) Minorities in every unit shall be protected in respect of their language,
script and culture, and no laws or regulations may be enacted that may operate
oppressively or prejudicially in this respect
(2) No minority whether based on religion, community or language shall be
discriminated against in regard to admission into State educational institutions, nor
shall any religious instruction be compulsorily imposed on them.
(3) (a) All minorities whether based on religion, community or language shall
be free in any unit to establish and administer educational institutions of their choice.
(b) The State shall not, while providing State aid to schools, discriminate against
schools under the management of minorities whether based on religion, community
or language.
Miscellaneous Rights
19. No property, movable or immovable, of any person or corporation including
any interest in any commercial or industrial undertaking, shall be taken or acquired
for public use unless the law provides for the payment of compensation for the pro¬
perty taken or acquired and specifies the principles on which and the manner in
which the . compensation is to be determined.
20. (1) No person shall be convicted of crime except for violation of a law in force
at the time of the commission of the act charged as an offence, nor be subjected to
a penalty greater than that applicable at the time of the commission of the offence.
(2) No person shall be tried for the same offence more than once nor be com¬
pelled in any criminal case to be a witness against himself.
21. (1) Full faith and credit shall be given throughout the territories of the Union
to the public acts, records and judicial proceedings of the Union fend every unit
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299
thereof, and the manner in which and the conditions under which such acts, records
and proceedings shall be proved and the effect thereof determined shall be prescribed
by the law of the Union.
(2) Final civil judgments delivered in any unit shall be executed throughout the
Union subject to such conditions as may be imposed by the law of the Union.
Right to Constitutional Remedies
22. (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of any of the rights guaranteed by this part is hereby guaranteed.
(2) Without prejudice to the powers that may be vested in this behalf in other
courts, the Supreme Court shall have power to issue directions in the nature of the
writs of habeas corpus , mandamus , prohibition, quo warranto and certiorari appro¬
priate to the right guaranteed in this part of the Constitution.
(3) The right to enforce these remedies shall not be suspended unless when, in
cases of rebellion or invasion or other grave emergency, the public safety may
require it.
23. The Union Legislature may by law determine to what extent any of the rights
guaranteed by this part shall be restricted or abrogated for the members of the
armed forces or forces charged with the maintenance of public order so as to ensure
fulfilment of their duties and the maintenance of discipline.
24. The Union Legislature shall make laws to give effect to those provisions
of this part which require such legislation and to prescribe punishment for those acts
which are declared to be offences in this part and are not already punishable.
(n) REPORT OF THE ad hoc COMMITTEE ON CLAUSE 11 OF THB
ANNEXURE TO THB INTERIM REPORT OF THE ADVISORY COMMITTEE
ON THE SUBJECT OF FUNDAMENTAL RIGHTS
May 1. 1947
• * *
Clause 11: Clause 11 (b) does not, in our opinion, include conscription for
military service. But the expression “forced labour” being very comprehen¬
sive, we think that the Explanation should be retained in order to make an
exception in the case of compulsory service for public purposes. We suggest
that instead of the word “Explanation”, the words “Provided that” be sub¬
stituted, so that the amended clause will stand thus :
Traffic in human beings, and begar and other similar forms of forced
labour are prohibited, and any contravention of this prohibition shall be
an offence:
Provided that nothing in this clause shall prevent the State from impos¬
ing compulsory service for public purposes without any discrimination on
the ground of race, religion, caste or class.
S. Varadachari,
Tek Chand,
B. L. Muter,
A. Krishnaswami Ayyar,
K. N. Katju,
B. R. Ambedkar,
K. M. Munshi.
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(m) CLAUSES ON FUNDAMENTAL RIGHTS AS ADOPTED BY THE
CONSTITUENT ASSEMBLY
April-May, 1947
JUSTICIABLE FUNDAMENTAL RIGHTS
Definitions
1. Unless the context otherwise requires—
(i) “The State” in this Part includes the legislatures and the govern¬
ments of the Union and the units and all local or other authorities
within the territories of the Union.
(ii) “The Union” means the Union of India.
(iii) “The law of the Union” includes any law made by the Union
legislature and any existing Indian law in force within the Union or
any part thereof.
Application of Laws
2. All existing laws, notifications, regulations, customs or usages in
force within the territories of the Union inconsistent with the
rights guaranteed under this Part of the Constitution shall stand
abrogated to the extent of such inconsistency, nor shall any such
right be taken away or abridged except by an amendment of the
Constitution.
Citizenship
*[3. Every person born in the Union and subject to its jurisdiction;
every person either of whose parents was, at the time of such person’s
birth, a citizen of the Union; and every person naturalized in the Union
shall be a citizen of the Union.
Further provision regarding the acquisition and termination of Union
citizenship may be made by the law of the Union.]
Rights of Equality
4. (1) The State shall not discriminate against any citizen on grounds
of religion, race, caste or sex.
(2) There shall be no discrimination against any citizen on any ground
of religion, race, caste or sex in regard to—
(a) access to trading establishments including public restaurants, hotels
and places of public entertainment,
(b) the use of wells, tanks, roads and {daces of public resort maintained
wholly or partly out of State funds or dedicated to the use of the
general public :
Provided that nothing contained in this clause shall prevent separate
provision being made for women and children.
•Further consideration held over. (This clause is as redrafted by the ad hoc
committee.)
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301
5. (a) There shall be equality of opportunity for all citizens in matters
of public employment.
(b) No citizen shall on grounds only of religion, race, caste, sex, descent,
place of birth or any of them be ineligible for public office.
Nothing herein contained shall prevent the State from making provision
for reservations in favour of classes who in the opinion of the State, are
not adequately represented in the public services.
Nothing herein contained shall prevent a law being made prescribing that
the incumbent of an office to manage, administer or superintend the affairs
of a religious or denominational institution or the member of the governing
body thereof shall be a member of that particular religion or denomination.
6. “Untouchability” in any form is abolished and the imposition of any
disability on that account shall be an offence.
7. No title shall be conferred by the Union.
No citizen of the Union shall accept any title from any foreign State.
No person holding any office of profit or trust under the State shall with¬
out the consent of the Union Government, accept any present, emoluments,
office or title of any kind from any foreign State.
Rights of Freedom
8. There shall be liberty for the exercise of the following rights subject
to public order and morality and except in a grave emergency declared
to be such by the Government of the Union or the unit concerned whereby
the security of the Union or the unit, as the case may be, is threatened :
(a) The right of every citizen to freedom of speech and expression.
(b) The right of the citizens to assemble peaceably and without arms.
(c) The right of citizens to form associations or unions.
(d) The right of every citizen to move freely throughout the Union.
(e) The right of every citizen to reside and settle in any part of the
Union, to acquire, hold, and dispose of property and to exercise or
carry on any occupation, trade, business or profession :
Provision may be made by law to impose such restrictions as may
be necessary in the public interest including the protection of minority,
groups and tribes.
9. No person shall be deprived erf his life or liberty without due process
of law, nor shall any person be denied equality before the law within the
territories of the Union.
10. Subject to regulation by the law of the Union, trade, commerce, and
intercourse among the units by and between the citizens shall be free :
Provided that nothing in this section shall prevent any unit from imposing
on goods imported from other units the same duties and taxes to which
the goods produced in the unit are subject and under regulations and
conditions which are non-discriminatory :
Provided that no preference shall be given by any regulation of com¬
merce or revenue to one unit over another:
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Provided further that any unit may by law impose restrictions in the
interest of public order, morality or health or in an emergency.
**[11. Traffic in human beings, and begar and other similar forms of
forced labour are prohibited, and any contravention of this prohibition
shall be an offence :
Provided that nothing in this clause shall prevent the State from imposing
compulsory service for public purposes without any discrimination on the
ground of race, religion, caste or class.]
*12. No child below the age of 14 years shall be engaged to work in
any factory, mine or any other hazardous employment.
Rights relating to Religion
13. All persons are equally entitled to freedom of conscience, and the
right freely to profess, practise and propagate religion subject to public
order, morality or health, and to the other provisions of this Part.
Explanation 1. —The wearing and carrying of kirpans shall be deemed
to be included in the profession of the Sikh religion.
Explanation 2. —The above rights shall not include any economic, finan¬
cial, political or other secular activities that may be associated with reli¬
gious practice.
Explanation 3. —The freedom of religious practice guaranteed in this
clause shall not debar the State from enacting laws few the purpose of
social welfare and reform and for throwing open Hindu religious institu¬
tions of a public character to any class or section of Hindus.
14. Every religious denomination or a section thereof shall have the
right to manage its own affairs in matters of religion and, subject to law,
to own, acquire and administer property, movable and immovable, and
to establish and maintain institutions for religious or charitable purposes.
15. No person may be compelled to pay taxes, the proceeds of which
are specifically appropriated to further or maintain any particular religion
or denomination.
*[16. No person attending any school maintained or receiving aid out
of public funds shall be compelled to take part in the religious instruction
that may be given in the school or to attend religious worship held in
the school or in premises attached thereto.]
*[17. Conversion from one religion to another brought about by coercion
or undue influence shall not be recognised by law.]
Cultural and Educational Rights
18. (1) Minorities in every unit shall be protected in respect of their
language, script and culture, and no laws or regulations may be enacted
that may operate oppressively or prejudicially in this respect.
*[(2) No minority whether based on religion, community or language
♦Referred back to the Advisory Committee.
**Further consideration held over. (This clause is as redrafted by the ad hoc
committee.)
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shall be discriminated against in regard to the admission into State edu¬
cational institutions, nor shall any religious instruction be compulsorily
imposed on them.]
(3) (a) All minorities whether based on religion, community or language
shaQ be free in any unit to establish and administer educational institutions
of their choice.
(b) The State shaU not, while providing State aid to schools, discrimi¬
nate against schools under the management of minorities whether based
on religion, community or language.
Miscellaneous Rights
19. No property, movable or immovable, of any person or corporation,
including any interest in any commercial or industrial undertaking, shall
be taken or acquired for public use unless the law provides for the payment
of compensation for the property taken or acquired and specifies the
principles on which and the manner in which the compensation is to be
determined.
20. (1) No person shall be convicted of crime except for violation of
a law in force at the time of the commissi cm of the act charged as an
offence, nor be subjected to a penalty greater than that applicable at the
time of the commission of the offence.
(2) No person shall be tried for the same offence more than once nor
be compelled in any criminal case to be a witness against himself.
21. (1) Full faith and credit shall be given throughout the territories of
the Union to the public acts, records and judicial proceedings of the Union
and every unit thereof, and the manner in which and the conditions under
which such acts, records and proceedings shall be proved and the effect
thereof determined shall be prescribed by the law of the Union.
(2) Final civil judgments delivered in any unit shall be executed
throughout the Union subject to such conditions as may be imposed by
the law of the Union.
Right to Constitutional Remedies
22. (1) The right to move the Supreme Court by appropriate proceed¬
ings for the enforcement of the rights provided for in this Part is
guaranteed.
(2) Without prejudice to the powers that may be vested in this behalf
in other courts, the Supreme Court shall have power to issue directions
in the nature of the writs of habeas corpus, mandamus, prohibition, quo
warranto and certiorari appropriate to the right guaranteed in this Part of
the Constitution.
(3) The right to enforce these remedies shall not be suspended unless
when, in cases of rebellion or invasion or other grave emergency declared
to be such by the Government of the Union or of the unit concerned,
the public safety may require it.
23. The Union legislature may by law determine to what extent any of
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the rights guaranteed by this Part shall be restricted or abrogated for the
members of the armed forces or forces charged with the maintenance of
public order so as to ensure fulfilment of their duties and the maintenance
of discipline.
24. The Union legislature shall make laws to give effect to those provi¬
sions of this Part which require such legislation and to prescribe punish¬
ment for those acts which are declared to be offences in this Part and are
not already punishable.
(IV) SUPPLEMENTARY REPORT OF THE ADVISORY COMMITTEE ON
THE SUBJECT OF FUNDAMENTAL RIGHTS
August 25, 1947
From
The Hon’ble Sardar VALLABHBHAI PATEL,
Chairman, Advisory Committee on Minorities,
Fundamental Rights, etc.
To
The President,
Constituent Assembly of India.
Dear Sot,
In continuation of my letter No. CA/24/Com/47, dated the 23rd April
1947, I have the honour, on behalf of the committee, to submit this
supplementary report on fundamental rights.
2. We have come to the conclusion that, in addition to justiciable
fundamental rights, the Constitution should include certain directives of
State policy which, though not cognizable in any court of law, should be
regarded as fundamental in the governance of the country. The provisions
that we recommend are contained in the Appendix.
3. In para. 8 of our previous report, we had referred to the recommenda¬
tion of the Fundamental Rights Sub-Committee that the right of the
citizen to have redress against the State in a court of law should not be
fettered by undue restrictions. After careful consideration, we have come
to the conclusion that it is not necessary to provide in the Constitution
for any further right in this connection than those already contained in
clause 22 as accepted by the Assembly in the April-May session.
4. The Constituent Assembly had referred back to us clauses 16, 17
and 18(2) of our previous repent. We have re-examined the clauses and
our recommendations are as follows:
Clause 16: “No person attending any school maintained or receiving
aid out of public funds shall be compelled to take part in the religious
instruction that may be given in the school or to attend religious worship
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305
held in the school or in premises attached thereto.”
We recommend that this clause be accepted by the Assembly in its
present form.
Clause 17: “Conversion from one religion to another brought about by
coercion or undue influence shall not be recognized by law.”
It seems to us on further consideration that this clause enunciates a
rather obvious doctrine which it is unnecessary to include in the Constitu¬
tion and we recommend that it be dropped altogether.
Clause 18(2): “No minority whether based on religion, community or
language shall be discriminated against in regard to the admission into
State educational institutions, nor shall any religious instruction be compul¬
sorily imposed on them.”
We recommend that the latter portion of the clause, namely “nor shall
any religious instruction be compulsorily imposed on them” be deleted
in view of clause 16 above which we have recommended for retention. We
recommended that the rest of the clause be adopted by the Assembly.
We have examined the question as to whether the scope of the clause
should be extended so as to include State-aided educational institutions
also and have come to the conclusion that in present circumstances we
would not be justified in making any such recommendation.
5. The Fundamental Rights Sub-Committee in their report to us had
recommended the adoption of Hindustani, written either in Devnagari or
the Persian script, as the national language of the Union of India, but we
had thought fit to postpone consideration of the matter in April 1947. In
view of the fact the Constituent Assembly is already seized of the matter
by certain recommendations of the Union Constitution Committee’s report,
we think it unnecessary to incorporate any provision on the subject in the
list of fundamental rights.
6. We have also examined numerous amendments in the nature of new
provisions, notice of which had been given by several members during the
April-May session of the Assembly, and have not been able to accept any
of them. Some of them relate to matters which have already been provided
for either in the clauses already accepted by the Assembly or in the new
clauses which we have recommended in this report; and the others seem
to us unnecessary or inappropriate.
Vallabhbhai Patel,
Chairman.
APPENDIX
FUNDAMENTAL PRINCIPLES OF GOVERNANCE
Preamble
1. The principles of policy set forth in this Part are intended for the guidance
of the State. While these principles are not cognizable by any court, they are
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nevertheless fundamental in the governance of the country and their application
in the making of laws shall be the duty of the State.
Principles
2. The State shall strive to promote the welfare of the whole people by securing
and protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.
3. The State shall, in particular, direct its policy towards securing—
(i) that the citizens, men and women equally, have the right to an adequate
means of livelihood;
(ii) that the ownership and control of the material resources of the community
are so distributed as best to subserve the common good;
(iii) that the operation of free competition shall not be allowed to result in the
concentration of the ownership and control of essential commodities in a few
individuals to the common detriment;
(iv) that there shall be equal pay for equal work for both men and women;
(v) that the strength and health of workers, men and women, and the tender
age of children shall not be abused and that citizens shall not be forced by
economic necessity to enter avocations unsuited to their age and strength;
(vi) that childhood and youth are protected against exploitation and against
moral and material abandonment
4. The State shall, within the limits of its economic capacity and development
make effective provision for securing the right to work, to education and to public
assistance in case of unemployment, old age, sickness, disablement, and other cases
of undeserved want.
5. The State shall make provision for securing just and humane conditions of
work and for maternity relief for workers.
6. The State shall endeavour to secure, by suitable legislation, economic organisa¬
tion and in other ways, to all workers, industrial or otherwise, work, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure
and social and cultural opportunities.
7. The State shall endeavour to secure for the citizens a uniform civil code.
8. Every citizen is entitled to free primary education, and it shall be the duty
of the State to provide within a period of 10 years from the commencement of this
Constitution for free and compulsory primary education for all children until they
complete the age of 14 years.
9. The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled
Castes and the aboriginal tribes, and shall protect them from social injustice and
all forms of exploitation.
10. The State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among its primary
duties.
11. It shall be the obligation of the State to protect every monument or place
or object of artistic or historic interest, declared by the law of the Union to be of
national importance, from spoliation, destruction, removal, disposal or export, as
the case may be, and to preserve and maintain according to the law of the Union
all such monuments or places or objects.
12. The State shall promote international peace and security by the prescription
of open, just and honourable relations between nations by the firm establishment of
the understandings of international law as the actual rule of conduct among govern¬
ments and by the maintenance of justice and the scrupulous respect for treaty
obligations in the dealings of organized people with one another.
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PART THREE
MINORITIES
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NOTES AND MEMORANDA SUBMITTED TO THE
SUB-COMMITTEE ON MINORITIES
March-July 1947
[The resolution setting up the Advisory Committee on the subject of
Fundamental Rights, Minorities etc. [see Document No. 3(i)] had envi¬
saged the appointment of certain sub-committees from time to time.
The Minorities Sub-Committee was one of the five sub-committees
set up by the Advisory Committee at its first meeting on February
27, 1947. Initially the sub-committee had only 26 members but the
President of the Constituent Assembly was authorized to nominate
additional members, [see Document No. 4(i)]. After preliminary dis¬
cussions at its meetings on February 27 and 28 the Sub-Committee on
Minorities decided to circulate to its members a questionnaire drafted
by K. M. Munshi (see Document No. 9). Replies to this questionnaire
and other memoranda on the subject were invited by March 31. Be¬
sides replies from its members, the sub-committee received certain
notes and memoranda from representatives of minority communities
and organizations. The texts of the replies to the questionnaire and
notes and memoranda from members and others are reproduced below.
(For AmbedkaPs memorandum see Document No. 4(ii).)]
(i) MEMORANDA BY MEMBERS OF THE SUB-COMMITTEE
(a) Memorandum on Minorities by Rajkumari Amrit Kaur
M arch 20. 1947
I venture to submit this short memorandum as a citizen of India. I hold
that every question in connection with the framing of a just and righteous
constitution for our country should be looked upon, by and large, from
the point of view of a citizen. If this standpoint is fundamentally correct
it follows that the primary duty of the committee appointed to look into
the problem of minorities is to suggest such ways and means as will help
to eradicate the evil of separatism rather than expedients or palliatives
which might, in the long run. only contribute to its perpetuation.
There is no gainsaying the fact that foreign domination has been one
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of the main causes, if not the main cause, of creating internal dissensions
between the two major communities. But now that the foreign power is
definitely leaving, it behoves us more than ever before to turn the search¬
light inwards. Such means as the British employed, e.g., separate electorates,
patronage in the realm of offices, honour, etc., side by side with an ignorant
and impoverished populace, may not only not be tolerated by us but their
continuance must be made impossible in the future. At the same time,
it cannot be denied that whatever seeds of dissension were sown by the
foreign rulers, the soil that nourished them and has allowed them to
assume the menacing aspect they now bear is ours. The greater fault, therefore
is ours.
Personally, I regret that the question of minorities was not made a part
of the work of the committee appointed to draft fundamental rights.
If the latter are broad-based and if suitable provision is made therein for
the machinery to enforce them, they should really give to the individual
as well as to the community to which he belongs all the protection he or
it needs. Freedom in all spheres of life, consistent with the moral law,
protection of life and property, perfect equality before the law and in society,
unadulterated justice and, above all, full, free and equal opportunities for
education and service are all that human beings and communities need for
both individual and social growth. I am more than ever convinced that
the stand taken by the majority of educated women in the matter of refusal
to ask for any special privileges for themselves in any sphere of life
is wholly correct. Women may be said technically to be the largest
single minority in India. Not only have custom and usage dealt
harshly with us, but even the law has militated and still continues to
militate against us. But we do not and must never lode upon ourselves
as anything but an integral part of the whole, nor must we claim any pri¬
vileges. Equality before the law and in society and equal opportunites for
education and service are all we claim as human beings, and I believe that
in the proper fulfilment of our duties as citizens—and duties must go hand
in hand with rights—lies our best safeguard.
Although a member of a small and financially poor community, I ap¬
peal to its members to eschew privileges. Such an attitude would be
wholly in keeping with the spirit of the teachings of Jesus Christ. A
community that can boast the highest percentage in comparison with any
other in the sphere of education among women and which is unhampered
by such social injustices as exist elsewhere in the forms of purdah, poly¬
gamy, untouchability and laws of inheritance cannot or should not be afraid
to rely for its progress mainly on opportunities for service in a State
where human rights are fully guaranteed. Privileges and safeguards really
weaken those that demand them. They are a definite bar to unity, without
which there can be no peace, as also to efficiency without which the
standards of good governance are lowered. Axiomatkally there is no
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NOTES AND MEMORANDA ON MINORITIES
311
reason why the interests of any individual or community should not be safe in
the hands of a good person or persons, irrespective of their personal religion.
Joint electorates will help to a large extent to create this confidence and
must be embodied in the Constitution.
Rather than say for how long any safeguards are necessary 1 would
[dead with the minorities to say that the necessity few safeguards should
only be considered after a period of, say, five or seven years, if their trust
in the majority communities has, in this interval, been proved to be wholly
unjustified.
Trust in the goodness of men is the best way of invoking generosity in
them. 1 am, therefore, of opinion that no minority should demand any
safeguards but should be brave enough to rely solely on the goodwill of
the majority and its own inherent moral strength. Nevertheless it is up
to the majority communities to inspire the necessary confidence in the
minorities as to enable them to adopt this attitude. The larger responsi¬
bility is really theirs. No constitution, however carefully worded and fram¬
ed can guarantee the absence of strife if there is no good-will among the
parties concerned. The ideal of men living happily and at peace with
each other definitely implies the rule of reason instead of passion. Bitter¬
ness, prejudice and dissension are negative and destructive, but they exist
in our land today. Clemency, compassion and consideration are positive
virtues without which there can be no human understanding and, there¬
fore, no hope of building up solidarity and unity.
It is a big tragedy that the task of framing a constitution has come to
us at a time when hatred and mistrust dominate the minds erf men. But
we may not forget that underneath man’s brutish passions, in spite of
greed and ignorance, he is a reasoning being. Passions rage and flame and
destroy, as they are doing today, but they will also exhaust themselves,
and man does inherently prefer to live in keeping with the dignity of a
human being rather than follow the law erf the jungle.
While consistently holding that safeguards for minorities are wholly un¬
desirable, I nevertheless fear that the appeal for a non-demand of all such
will today be a lone cry. Having regard to the tense atmosphere in which
we live and having said that it is up to the majority communities to inspire
the necessary confidence in the minorities, I venture to submit a few sug¬
gestions for their consideration. These suggestions naturally carry no legal
knowledge or authority but are only in the nature of a way of approach
to the solution of this vexed question.
Would it not be wise for the majority communities to consider the
solution of the problem mainly in terms of division of responsibility and
power? Division of territory and/or exchange of populations do not
really go to the root of the matter. In the long run. these expedients might
even serve to separate rather than unite. It should, however, be possible
to banish fear, restore confidence and generate goodwill by the sharing of
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FRAMING OF DOHA’S CONSTITUTION
power, on a population basis, both at the Centre and in the Provinces.
For example, important and not so important portfolios may in turn be
held by members of the different communities according as their popula¬
tion and importance at the Centre and in a particular province merit.
While the Legislative Assembly is elected on a system of joint electo¬
rates there could be a Senate or Board of Members elected by the different
communities in which no community can have more than one vote. This
body could veto by a majority any measure which it felt was not for the
general good. At the same time, no one community should be allowed to
stand in the way of other communities wishing to carry out projects, the
veto in that case applying only to the community concerned.
As to what are or are not communal questions there might be a tribunal
constituted at the Centre to decide the issue.
The Senate or Board or some other body may be appointed to see that
the members of all communities have a reasonable chance given them in all
services beginning from the lowest sphere to the highest But in order to
ensure maximum efficiency it should be a sine qua non that promotion shall
be only and strictly on the basis of integrity and merit I place integrity ad¬
visedly before merit because high standards of public morality must be
maintained if the State is to be a great moral agency.
To this rad, I am quite certain that in drawing up a code of fundamental
rights there should also be drawn up a code of duties of citizens. Rights
should really follow duties, a wise axiom which is lost sight of in the maze
of fear and suspicion in which today we live and move and have our being.
(b) Reply to thb Questionnaire received from M. Ruthnaswamy
March 31, 1947
1. What should be the nature and scope of the safeguards for a minority in
the new Constitution?
The tendency of a majority, as of all those in power, is to make little
of the rights and libraries of a minority. This view is supported by the
history of democracy in every age and in every country. The interests of
the country, the cause of progress, reasons of State are among the excuses
advanced for this attitude of the majority to the minority. So much so that
historians and defenders of liberty like Acton have said that the one prevail¬
ing evil of democracy is the tyranny of the majority and that the test of
liberty in a democracy is the security of the minorities. How to secure the
freedom of minorities in a democracy is the great problem of modem
constitution-making. To solve this problem, it is necessary to distinguish
between two kinds of minorities—political minorities and national or religious
minorities. Political minorities are to be found wherever a State is formed
of a politically unified people or nation and a democratic or popular form of
government obtains. The democratic form of government involves the rule
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NOTES AND MEMORANDA ON MINORITIES
313
of the majority. But on account of the perfect or almost perfect political
unification of the people there is no permanent majority or permanent
minority. The minority of today becomes the majority of tomorrow. Popu¬
lar elections allow the majority party and the minority party of one elec¬
tion turn and turn about of political power. Whereas with a national or
religious minority in an imperfectly unified country, the minority is a per¬
manent minority, the majority of today cannot become the minority of to¬
morrow. Either kind of minority requires safeguards for the defence and
preservation of its rights and liberties, because the majority in a democracy,
like the monarch in a monarchical or an oligarchy in an oligarchical State
always tends to abuse its power. It is not the fault of democracy or of a
monarchy or of an oligarchy. It is the fault of power. Only, the safeguards
required by a political minority need not be as many or as heavily fortified
as those required by a national or religious minority—just because the poli¬
tical minority has that important safeguard that it can as a result of elec¬
tions be seated in its turn in the seats of authority. Therefore the safe¬
guards required by minorities will vary in number and in strength accord¬
ing to the nature and character of the minorities.
2. What should be the political safeguards of a minority (a) in the Centre
(b) in the Provinces?
3. What should be the economic safeguards of a minority (a) in the Centre
(b) in the Provinces ?
4. What should be the religious, educational and cultural safeguards for a
minority ?
1. The case of political minorities
The answer to these questions will vary according as we have a political
minority or a religious or national or cultural minority in mind.
Let us take the case of a political minority. Even though India is im¬
perfectly politically united, as the democratic system of government is to be
introduced there will always be a political majority and a political minority
or minorities facing each other in the legislatures and in the country. This
will be especially so in predominantly Hindu and Muslim provinces where
some Hindus in the former, some Muslims in the latter, will be minorities.
To defend the rights and liberties of such a minority or minorities there are
certain safeguards which have obtained in systems of free government.
Among them are the following:
1. A government constitutionally checked and controlled—no institution
of government whether legislature, executive or judiciary should be
supreme—liberty depends on the division of power—the power of the
legislature should be controlled by the power of the people and by its
own division into co-equal and coordinate chambers; the executive should
not be at the will and pleasure of the legislature; the decisions of the
judiciary although controlling the acts of the legislature and the exe¬
cutive must be liable to have the law they lay down changed by new legis¬
lation.
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FRAMING OF INDIA’S CONSTITUTION
2. Freedom of speech, of association, of meeting, of religious worship
where they are not common law—freedom should be asserted and in¬
corporated in the Constitution.
3. The Rule of Law involving the independence of the judiciary to whom
must be entrusted the defence of the citizen against the tyranny or abuse
of power by the executive and of the civil power against the military.
4. Decentralization of government—political power and governmental au¬
thority must not be concentrated in the hands of one government whether
at the Centre or in the Provinces—full-blooded village self-government,
vigorous local self-government in district boards and municipalities should
evenly spread political power and interest in all parts of the country—
political power should spread to the circumference and not be concentrated
at the Centre—decentralization of government and of political power is
necessary in the interests of political liberty.
5. Federalism—because the federal system limit s and restrains the sove¬
reign power of a large state by dividing it and assigning to the different
governmental authorities only certain defined rights—nobody is absolutely
supreme or sovereign in a Federal State, neither the Federal Government
nor the government of the federating units.
2. The Case of National, Religious and Cultured Minorities
It is only in regard to these kinds of minorities that answers to questions
(3) and (4) of the questionnaire are relevant. As these are permanent
minorities special and peculiar safeguards for the defence and protection of
their rights and interests are required in addition to the safeguards required
for political minorities. Such minorities in India are Muslims, Sikhs, Indian
Christians, Anglo-Indians. It is not necessary to decide whether the Mus¬
lims or any of the others are national minorities nor to decide the vexed
question whether the Muslims are a nation. It is enough in connection with
this question of minorities and safeguards of minorities that these and simi¬
lar communities are treated as permanent minorities, whether each of them
considers itself to be a national, or religious or cultural minority or all to¬
gether. It is as a permanent minority never able or hoping to be able to
influence and carry the government of any day that they require certain
rights to be asserted and safeguarded. It is true that many of these rights
will be concerned with the claims in regard to their nationality or religion
or culture. But it is as a permanent minority whose rights on behalf of their
religion or culture or nationality may be ignored or denied by the majority
(as has happened elsewhere, e.g ., in Central and Eastern Europe which led
to the Minorities Treaties of Europe after World War I) that they re¬
quire special treatment in the constitution. Among the more important of
the rights that must be safeguarded for these permanent minorities are:
1. The right to profess, preach, propagate their religion in private and
in public, in individual capacity or in organized collectivity. Most reli¬
gions, especially the religions of the permanent minorities of India, Mus¬
lims and Christians are social religions requiring fellowship in worship
and profession. Nothing should be done by the legislature or executive
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NOTES AND MEMORANDA ON MINORITIES
315
of any government in India, Central or Federal, or State or Provincial
to interfere with the profession and practice of their religion in private
and public by members of these minorities.
2. The right of each of these minorities to have the promotion of their
religious and secular culture suitably and adequately provided for. Legal
provision should therefore be made in the constitution of the Centre, the
Provinces and the States that their budgets should provide for the cultu-
ral advancement of these minorities by
(0 grants-in-aid to schools and other educational institutions maintain¬
ed by these religious communities and in which their religion is taught;
(if) special grants for the promotion of the education, in all grades and
kinds of education (including university and technical) of educationally
backward minprities—such aids shall continue till these minorities come
up to the general level of educational progress in the country;
(iii) schools for minorities, where their religion and their culture would
be cultivated, should be maintained by the government in areas where
the majority of the population belongs to a cultural or religious mino¬
rity.
3. Provision for the adequate representation of such minorities in the
Central, Provincial or State Ministries and all departments of the admi¬
nistrations—the fairest proportion would be according to population.
5. What machinery should be set up to ensure that the safeguards are
effective?
Before I answer this question about machinery I should like to say a word
about the drafting of the clauses embodying these rights and safeguards for
the minorities. Here also I Would distinguish between the rights of political
minorities and the rights and interests of the national, religious or cultural
minorities. The former are historic and universally accepted. They have been
looked upon as natural rights. It is best therefore that we assume them to be
natural rights as existing, previous to and independent of the Constitution
of India. We have respectable precedent for it. The Constitution of the
U.S.A. did not assert or claim these rights. It simply took them for granted.
It only took care that legislatures and governments should not deprive the
people of them. Thus the first amendment to the Constitution of the
U.S.A., the first of the Articles safeguarding the rights of the citizen, runs
as follows:
Congress shall make no law respecting the establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech
or of the press; or of the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.
Similarly the fourth amendment runs:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated and
no warrant shall issue, but upon probable cause supported by oath or affir¬
mation and particularly describing the place to be searched, and the per¬
sons or things to be seized.
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The ninth amendment is more decisive in its assumption of natural rights.
It says: “The enumeration in the constitution of certain rights shall not be
construed to deny or disparage others retained by the people.”
It is not mere sentimental or abstract considerations that persuade me
to insist on this way of incorporating these rights and their safeguards into
the constitution. Assumption of these rights in the Constitution gives them
greater strength than assertion of them in solemn form as if they were grant¬
ed by the constitution or the makers thereof. To grant them in (me consti¬
tution implies that they may be withdrawn or cancelled in the next consti¬
tution—the next amendment. Whereas the rights of political minorities
like the right to freedom of religion and religious worship, of speech, of
meeting, of association are universal and permanent rights.
The rights of the national and religious and cultural minorities are on
a different footing. These are comparatively new and presumably tempo¬
rary. They are to provide for and last till these minorities are able as a
result of tlm provisions made in the Constitution in course of time make such
headway in education and development of their secular or religious culture
that they do not require these safeguards any longer or till the majority,
on account of whose neglect or laches in regard to the interests of minori¬
ties these demands have arisen and are justified has proved itself worthy
of the confidence of the minorities in their statesmanship. In the case of
most of these rights they have to be asserted for the first time in the Consti¬
tution. Moreover positive provisions have to be made for the promotion
and advancement of the interests protected. The clauses that have to be
drafted for incorporating these rights in the Constitution would run some¬
what as follows on the lines of certain minority protection clauses found in
certain treaties made after World War I. Thus the Polish Minorities Treaty
of 1918 says in Art. 9 that—
Poland will provide in the public educational system in towns and dis¬
tricts in which a considerable proportion of Polish nationals of other than
Polish speech are residents adequate facilities for ensuring that in the
primary schools the instruction shall be given to the children of such
Polish nationals through the medium of their own language.
Art. 10 of the same Treaty says:
Educational committees appointed locally by the Jewish communities of
Poland will, subject to the general control of the State, provide for the
distribution of the proportional share of public funds allocated to Jewish
schools in accordance with Art 9 and for the organization and manage¬
ment of these schools.
For the drafting of such special and presumably temporary rights of
national, religious and cultural minorities, the form of words used in the
Polish Minorities Treaty and other similar enactments operating in Europe
in 1921-1939 may be used. Thus the special rights of national, religious
or cultural minorities would be drafted as follows:
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NOTES AND MEMORANDA ON MINORITIES
317
(>) The Central, Provincial and State governments shall provide in their
annual budgets adequate sums for the promotion of the religious and
secular education and culture of all national, religious or cultural
minorities.
(ii) Provision shall be made for the adequate representation of national,
religious and cultural minorities in the legislatures and administra¬
tions of the Central, Provincial and State governments.
All these rights and safeguards, whether of political or of national, reli¬
gious or cultural minorities, should find a place in the constitution of the
Union, of the Provinces, of the groups and of the States.
Now coming to the question of the machinery to ensure that the safe¬
guards are effective, I am of opinion that as all these rights and safeguards
are incorporated in the Constitution, like the rest of the constitution they
should be placed under the protection of the Federal Court and its local
units in the country. A court like this has been found the most effective
guardian of rights and liberties granted by the constitution. On account of
the high prestige for impartiality and independence enjoyed by courts of law
in this country and as long as they continue to enjoy this prestige, minori¬
ties like individuals would find in them the best defence of their rights and
liberties. But in order that this federal justice may be easily accessible and
available, local units of this court must be widespread all over the country.
Every Province or large State or group of small States should have such
local units of the Federal Court.
6. How is it proposed that the safeguards should be eliminated, in what time
and under what circumstances ?
Here again I must distinguish between the rights of political minorities
and the rights of national, religious and cultural minorities. The first set
of rights and safeguards will be permanent because the danger is always
there of the abuse of power by the majority. As all history and contempo¬
rary experience have shown that majorities like all holders of power tend
to abuse that power, the safeguards against such abuse should always re¬
main in the Constitution. As regards the rights and safeguards of the
national, religious and cultural minorities these will remain :
(i) till political unity reaches the stage when the members of these minori¬
ties feel that their religion or community is no bar to the enjoyment
of all the rights of citizenship, and when they feel that their politi¬
cal status and power are the same as that of the citizens of the
majority communities and when they feel that by means of their
votes added to those of others they can put their representatives in
political power and when by means of their votes added to those
of others of their way of thinking they can influence the conduct
of public affairs, when they cease to find that they are in a per¬
manent minority merely because of the fact that they belong to a
particular religion or community.
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FRAMING OF INDIA’S CONSTITUTION
(ii) and till the religious and secular culture of the minority has reached
such a stage that the minority does not require any special aids
from the government,
(iii) no time can be fixed for the attainment of this end as it will depend
on the extent and the rate at which the governments of the majori¬
ties are able to make these special rights and safeguards super¬
fluous and unnecessary.
(c) Memorandum on Minorities by R. K. Sidhwa
March 31, 1947
In more than one of the meetings of the Constituent Assembly, some
members pertinently raised points that the Parsecs do not come under the
minority community and no reference was made by the British delegation
in their Statement of May 16, 1946 in that respect. 1 have tried to explain
to some of the members, but I do feel that the matter requires to be placed
on record as to why the British delegation have not made any reference
to the Parsee community as a minority community.
The facts are that the Parsee community though small in number is
almost equal to the population of Anglo-Indians. Parsees were the pioneers
in all walks of public life, viz-, political, social, educational, commercial
and industrial, and they always held progressive views in all these matters.
In fact, efforts were made many a time by the British Government through
their agents in India pressing the Parsee community to ask for a separate
representation in various legislatures, but they flatly refused. It may be
mentioned here that a year after the 1942 struggle for freedom, by the
Indian National Congress, Mr. Amery, then Secretary of State for India,
made another effort to divide the Parsee community and made an offer
for a separate representation to them. This was again emphatically opposed
in a representation signed by nearly 2,000 Parsees holding university
degree which was sent to him stating that their interests are safeguarded
by sister communities. In view of all these facts, the British Government
are perfectly justified in not mentioning the name of the Parsee community,
like other communities who demanded special representation and special
rights. This does not mean that when India is going to be absolutely
free Parsees should not have any say in the framing of the constitution
for free India. The very fact that the Congress have been very generous
in electing three Parsees in the Constituent Assembly refutes the arguments
advanced by certain persons who are not conversant with facts.
It would be worthwhile mentioning in detail as to the activities of the
Parsee community in the past.
The Parsees of India are not new to this country. They have a long
history and an equally long connection with the country of their birth and
adoption. It extends to centuries before Christ when the Northern fron-
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NOTES AND MEMORANDA ON MINORITIES
319
tiers of India formed the outlying frontiers of the Persian Empire of Darius.
Hystaspes and Xerxes. The Maury as who overthrew the Greek satrapy put¬
ting the Macedonians to flight and establishing a dynasty are known to
have employed Persian Zoroastrians as architects, soldiers and statesmen.
There are good reasons to believe that the legal pomp of the Mauryan
court was copied from Persia and sculpture, architecture and inscriptional
monuments of over 2,000 years ago discovered at Pataliputra unquestion¬
ably bear Persian influence. There appear references to Persian handiwork
even in the Rigveda and the Mahabharata.
During the Sassanidea between the third and the seventh century after
Christ, Zoroastrian Persia was in contact with India in the matter of trade,
commerce, learning and other arts. Since the loss of their empire and
their landing in India in the eighth century the Parsees have remained a
law abiding population.
During the thousand years and more that the Parsees have lived in
India as a settled community they have striven every nerve and fibre and
vitality they inherited from their noble ancestors to enhance the prestige
of their country erf adoption. Coming to comparatively recent times, the
Parsees have contributed no mean share in buildiog up the city of Bom¬
bay. In Karachi Parsees have played a very important part in the build¬
ing of its civic and political life. Amongst the adventurous and intelligent
brains erf various communities who have built up the prosperity of this
part of India so many of them were Parsees—mill magnates, merchants,
traders, businessmen, bankers, brokers, financiers, educationists, social re¬
formers, physicians, politicians, lawyers, parliamentarians and so forth.
The first spinning and weaving mill in Bombay was started by a Parsee,
followed in his footsteps by yet another Parsee. The pioneer of silk mill
industry in India was a Parsee. Soaps and safes are synonymous with the
name of a Parsee. The first Indian bank was sponsored by a Parsee. The
iron and steel industry, hydro-electric ventures, scientific learning and
research were all mooted by a Parsee industrialist of great depth of mind
and vision. Mr. J. N. Tata. The first hospitals, roads, wellsi. tanks, bhan-
dharas, dharamshaias, schools, etc., were built by a Parsee—Sir Jamsetjee
Jejeebhoy the 1st Bart., the king of munificence and benevolence. The
first Indian to enter the Parliament was a Parsee—Dr. Dadabhoy Naoroji,
the political guru of Mahatma Gandhi and nearly the father of the Indian
National Congress along with Hume, Cotton, Bradlaugh, Wedderbum and
the rest. The first to fight for the civil liberties of an Indian and to show
the way to civil and political autonomy was a Parsee—Sir Pherozeshah
Mehta, the uncrowned king of Bombay. The name of Mr. Jamshedji
Tata, the founder of the House of Tatas, is only comparable with the name
of Andrew Carnegie of America or of Lord Nuffield of England. Girls
education was first sponsored by a Parsee Mr. Malabari.
Just like Bombay, in Karachi they- have invested heavily in properties
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FRAMING OF INDIA’S CONSTITUTION
and small industries. Similarly Parsecs are scattered in Punjab—-specially
at Lahore, in Bengal—specially in Calcutta, few in Madras, a good number
in Central Provinces and Nagpur, and a few hundreds in almost all
important cities, where they are mostly engaged in professions and trades.
Parsee community though very small in number has by far surpassed
any other community in the various activities of public life. In Karachi
there are technical colleges sponsored by Parsees open to all communities
without any distinction. There is a N.E.D. (Nadirsha Edulji Dinshaw)
Trust Fund under the management of the Bombay University, which gives
scholarships to Indians for training in Western countries and many In¬
dians take advantage of the same. Sir Dorab Tata’s Trust Fund sends a
number of Indians to Europe and America for training in pioneer indus¬
tries and various Indians have received scholarships for this training.
While selecting the candidates for the last many years excepting very few
Parsees, all other communities’ persons have been sent to these countries.
It may be mentioned that after Bombay, the large number of the Parsee po¬
pulation is in Gujarat, viz., Surat, Broach, Ahmedabad and Navasari in
Baroda State. Then nearly 3,000 reside in Poona. The population of
Parsees in Karachi is about 5,000. It may also be mentioned that Parsees
contribute a fairly good sum of taxes both to the Central and Provincial
governments in comparison with population of other communities. Their
contribution towards taxes and other matters if compared with the popula¬
tion of other communities would be greater in every respect.
Since then the other communities have followed past activities of the
Parsees in all directions. This does not mean that the philanthropic,
benevolent and patriotic work done by the Parsees compared with the
number of their population should be lost sight of. Parsees have held
die high posts of Judges, Magistrates, Advocate Generals, Public Prose¬
cutors, Collectors, Commissioners, Directors of Agriculture, Inspectors
General of Prisons, Police and Hospitals, Directors of various Government
Departments. These they have obtained by sheer dint of merit and ability
and not by any favour. Parsees have all along tried to stand on their own
legs. The upper class are generally in profession and business and lower
middle class are employed mostly in commercial firms. The Parsees have
lived in the past by the honest sweat of their brow and they want to live
the same life under the new regime.
In short, the Parsees have lacked in nothing to build up modern India.
They have helped the cause, whatever its nature, with their usual muni¬
ficence, never caring for caste, creed or colour. Gujarat floods, Bihar and
Quetta earthquakes and such other nation-wide catastrophes are a few
instances. Indeed their charities have been cosmopolitan and many a well
placed Indian has been able to acquire his education through the instru¬
mentality of some of the Parsee trusts. Parsee catholicity is thus well
known and needs no stressing. While doing so much for its neighbours.
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NOTES AND MEMORANDA ON MINORITIES
321
its fellow brother, the community as a whole has refrained from any spoon¬
feeding by a political junta or a social or economic organization. It has
sought no favour and seeks none. But today it finds itself obliged to
come forward only to ensure its place in the India of the future. Before
the future constitution of India is framed and put on the statute book the
community hopes justice will be dispensed fairly and it will be given free¬
dom to cultivate and develop its innate genius according to its own cul¬
tural pattern and on its own lines compatible with national interest.
While we believe in the universal aphorism that no community can live
its own life in the midst of an ever-expanding world, one cannot but
admit that the Parsee community has led a unique existence of its own
these thousand years and more and preserved its heritage. Today how¬
ever as is natural it has begun to experience certain biological and socio-
biological difficulties. For the last two decades it has displayed a falling
birth-rate, especially in the city of Bombay and the logistic fit would go
to show that two or three decades hence the population will begin to be
stationary or even retrogressive. Already a microscopic community in the
midst of 400 millions, the Parsees can no longer remain passive to their
poptdational arithmetic. They would not desire to be ineffective wards
of the State like the Red Indians of America or the Maoris of New Zealand.
Nor do they wish to be reduced to the position of the Jews of Central
Europe. And the Parsee community honestly believes as they have believ¬
ed in the past, that its sister communities and countrymen will not like
to see a fine race of man go under by the sheer weight of number around
it.
The Parsees have today a separate Act for matrimonial purposes, which
Act is known as “Indian Act 3 of 1936—Parsee Marriage and Divorce
Act.” This Act came into existence about 70 years ago and in 1936,
when this Act was amended, objections were sent to the Parsee Panchayats
in various Provinces, where the Parsees reside, to express their opinion
and whatever suggestions were made, were accepted by the legislatures
without a comma or a fullstop being changed. In Indian Succession Act
there is a separate chapter relating to Parsees for distribution of shares
amongst the children by parents after death.
We desire that Acts of this nature should continue to exist in the new
Constitution and any amendment in these Acts shall be made only with
the consent of the Parsee community as has been done in the past.
It is further suggested that no enactment affecting the religion, customs,
personal law, endowments, and other cognate subjects should be initiated
and passed except with their own concurrence obtained as in the case of
Matrimonial Act and other Acts.
The above statement disposes of the various questions mentioned in the
questionnaire issued by the Constituent Assembly Office. There are two
clauses, however. Nos. 5 and 6, which are very important. As regards
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No. 5, I do feel that machinery should be set up to ensure that the safe¬
guards, which have been provided in the Constitution for minorities are
fully adhered to. I would suggest a minorities commission as outlined by
Babu Rajendra Prasad in his Book “India Divided”, page 381, which runs
as under:
There should be an independent minorities’ commission at the centre and
in the provinces composed of representatives of each community (but not
necessarily a member of that community) represented in the legislature,
elected by members of the legislature belonging to that community. No
member of the legislature shall be eligible for election and the term of
office of the members of commission shall synchronize with that of
the legislature. The function of the commission shall be to keep a con¬
stant watch over the interests of minority communities, to call for such
information as the commission consider necessary; to review periodically
the policy pursued in regard to the implementation of non-justifiable fun¬
damental rights and to submit reports to the Prime Minister. The recom¬
mendations of the commission shall be considered by the Cabinet and
the Prime Minister shall place the report of the commission with a full
statement of action taken thereon before the legislature which shall have
facilities provided for a discussion thereon.
This may require certain changes in the above paragraph which can be
discussed in detail at the meeting.
As regards clause 6, I am absolutely in favour of elimination of the
safeguards granted to the minorities communities, within a certain period.
Personally I would put its period upto the first election, v/z, five years.
I feel, however, that my view may not be acceptable to the other minority
communities. Therefore maximum period of 10 years is to be put for
the safeguards being continued. These safeguards should be so adminis¬
tered that they should automatically come to termination within a period
of 10 years. For this purpose there will require some kind of provision
in the Instrument of Instructions or in the Act. The relations between
the various communities should be so cordial that they should feel them¬
selves after the period of ten years that such safeguards are no longer
necessary. If the period is not mentioned then there will be a kind of
perpetual instinct in the mind of the minority community representatives
that the safeguards are to remain for ever and it will be difficult for these
small communities to come nearer with major communities. Ultimate
phase of political life of all Indians should be one nation, no community.
(d) Reply to the Questionnaire received from Homi Modi
March 1947
What should be the nature and scope of the safeguards for a minority in
the new Constitution?
In dealing with this question, I assume that the provisions to be
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NOTES AND MEMORANDA ON MINORITIES
323
incorporated in the Constitution with regard to the fundamental rights of
the citizen will adequately cover the rights of every individual. On that
assumption, what the Minorities Committee has to determine is how the
rights of groups of persons, having in common either religion, race or
language, are to be safeguarded. Such safeguards would be partly politi¬
cal, as for instance those dealing with the representation of a minority in
the political organs of the State, and partly social and cultural, as for
instance where they protect the way of life of a minority from destruction
or encroachment by overwhelmingly stronger groups.
What should be the political safeguards of a minority (a) in the Centre
and (b) in the Provinces?
As I have pointed out in the course of the general discussion in the
Minorities Committee, there can be no such thing as a political safeguard
which would have any value for a minority. What the minorities really
want are political opportunities, and if the principle is conceded, such
opportunities would have to be given by way of a minimum representa¬
tion in the legislatures and the executive.
So far as Parsees are concerned, they have never asked for any special
privileges, but their position is that if other minorities are accorded repre¬
sentation anywhere, it is but fair that Parsees should receive treatment at
least equal to that given to any of the smaller minorities. The great ser¬
vices rendered by the community to India throughout its history and the
contribution it has been making to the progress and development of the
country in every sphere fully warrant its claims to be considered in any
scheme designed for the special representation of minorities.
So far as the quantum of representation is concerned, I would submit
that the Parsees have a right, by virtue of the position they have carved
out for themselves, to be accorded representation equal to that of any other
community, except such minorities as are specially numerous. The claim is
for nothing more than equal treatment and I hope its justice will be conceded
What should be the economic safeguards of a minority (a) in the Centre
and (6) in the Provinces ?
Any discrimination in the economic sphere based on communal consi¬
deration is to be strongly deprecated, both because it would be detrimen¬
tal to the economic advance of the country and because such discrimina¬
tion might work to the disadvantage of members of the minorities. Merit
should determine recruitment to public services of every category, whether
military or civil, and if necessary, a clause should be inserted in the funda¬
mental rights of citizens that no person will be precluded from entering
any public service or vocation, profession or trade by reason of his or her
belonging to any particular faith.
What should be the religious, educational and cultural safeguards for a
minority ?
Safeguards in respect of religion would, it is assumed, be provided in
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FRAMING OF INDIA’S CONSTITUTION
the fundamental rights, ensuring to every group or community freedom
to practise its own faith and to maintain its own places of worship.
So far as educational safeguards are concerned, it is presumed that every
person will have the right to enter any educational institution, without
discrimination of any kind, as he or she may choose. Opportunities for
education and training should be available to all who possess the requisite
qualifications.
What machinery should be set up to ensure that the safeguards are effec¬
tive ?
The establishment of an effective machinery for safeguarding the rights
of minorities is a matter of great importance. The agency which would
inspire the most confidence would be an independent judiciary at a high
level which would have the right to override the acts of the executive and
the legislatures, whenever they infringed the rights given by the Constitution
to individuals or groups.
How is it proposed that the safeguards should be eliminated, in what time
and under what circumstances ?
I am not in favour of the elimination, in the course of time, of any safe¬
guards which may, under the Constitution, be provided for minorities.
It is not a question of any minority regarding itself as a separate entity
and refusing to be absorbed by the main currents of political life and
thought. Even with the closest possible identity of interests with the rest
of the population, a minority cannot always depend on having political
opportunities under modem democratic processes, and it should be
the aim of the majority communities to see to it that well-defined
groups though small in numbers, are not denied the privilege of sharing,
to however small an extent, in the conduct of the affairs of the
country.
(e) Memorandum on Minorities by H. J. Khandekar
April 2, 1947
1. Numerical Strength
The numerical strength of the Scheduled Castes of India including the
Indian States is almost equal to the Muslim population. We are asked
to believe that the Scheduled Castes are only 60 million in number and
as such our numerical inferiority is sought to be brought about in bold
relief. Whatever demands I make I press here that those should be
according to the strength of our population taking into consideration that
we are as equal as Muslims. If the Minorities Committee disputes this
claim of mine, I demand that an immediate fresh census of the Scheduled
Castes should be taken all over India including the Indian States so that
the Scheduled Castes will have a definite and reliable data. I am confi¬
dent that if such a fresh census as stated above is taken, it will prove that
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NOTES AND MEMORANDA ON MINORITIES 325
the Scheduled Castes population is, though not more, at least equal to
Muslim population.
2. Representation of Scheduled Castes
(a) Reservation of seats in Legislatures, Executive Governments, Judi¬
ciary, and the Services for Scheduled Castes proportionate to their popu¬
lation taking into consideration that they are as equal as Muslims with
such weightage as may be given to other communities. Out of the seats
reserved for ladies in the general constituencies, seats should be reserved
for Scheduled Castes ladies also. The seats reserved in the Legislatures
should not in any case be less than what have been allotted at present.
In local bodies as well there should be reservation on the above lines.
The post of head executive should rotate by turn among the Scheduled
Castes as well.
(b) Provision for the protection of rights of the Scheduled Castes: There
should be an independent Minorities Commission to deal with those rights
which are not enforceable by a court of law, in the Centre and in every
Province. Its composition should be as follows:
(1) One judge of the Supreme Court (or the Provincial High Court in
case of a Province) who will be ex-officio chairman of the
commission, to be nominated by the Government;
(2) Three members of the Legislative Assembly elected by the members
of the minorities communities in the Assembly;
(3) Three members of the minorities communities nominated by the
Government.
The commission shall have power—
fa) to call for any information from the Government;
(b) to call for any person, official or non-official, to appear before it and
give evidence;
(c) to examine laws or rules which operate against a minority or
minorities:
(d) to examine acts of omission or commission on the part of the execu¬
tive in administration of the privileges and facilities granted to the
minorities and submit report to the Government.
Procedure: The commission shall examine, on its initiative or on
application from any person of the aggrieved community, in the matter of
any infringement of the rights, privileges or facilities granted to the minori¬
ties and submit report to the Government.
The Government shall thereupon take steps, legislative or administrative
as the case may be, to give effect to the recommendations of the com¬
mission.
3. Provision for the social, educational and economic improvement
of the Scheduled Castes
Social: (a) Observance of untouchability in any shape or form by any
person in public places, places of public worship, public institutions, and
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FRAMING OF INDIA’S CONSTITUTION
places established or maintained at public cost and or for the use of the
public should be regarded as a cognizable offence.
Note : A public place means a place which is used by any other member of the
public besides the members of the family of the person who owns the place.
(b) It should not be obligatory on any person on account of his birth
in a certain caste to perform certain social, religious or public functions.
Anybody who forces a person on account of his birth to perform such
functions should be regarded to have committed a cognizable offence.
Educational: (a) Provision should be made by every Provincial Gov¬
ernment for the free education of the students of the Scheduled Castes at
all stages in all types of educational institutions maintained or aided by
Government or local bodies.
(b) Provision should be made in the budget of every Provincial Gov¬
ernment for adequate sums of money each year for ameliorative measures
for the Scheduled Castes.
(c) Provision should be made in the budget erf the Central Government
for adequate sums of money each year few granting stipends to Scheduled
Castes students for specialised training in science, arts, etc.
(d) Provision should be made for adequate representation of the
Scheduled Castes in senates and on governing bodies of educational
institutions.
(e) Provision should be made each year in the budget of the Central
Government for an adequate sum of money for granting stipends and
scholarships to the students of the Scheduled Castes for foreign education
and training.
Economic: (a) Forced labour should be regarded as a cognizable offence.
(b) All land should be nationalised and settled with such persons as
have no religious or social prejudice in working on land.
Till this is effected,
(i) all Government land, arable, fallow but arable, should be settled with
members of Scheduled Castes only,
(ii) Minimum wages, hours of work etc., should be fixed for agricul¬
tural labour.
(c) Industries should be nationalised.
(d) In all public services (Government and semi-Govemment) members of
Scheduled Castes should have reservation proportionate to their population.
To those services, for which suitable candidates from Scheduled Castes are
readily available, persons of other communities should not be recruited so
long as the Scheduled Castes do not secure their proportionate representation.
(e) Provision should be made for an adequate sum of money in the
budget of the Provincial Governments and the Centre for providing wells
(tubewells, dug-out wells), tanks, reservoirs and hydrants for drinking
water to the Scheduled Castes.
(f) Provision should be made for an adequate sum of money in the
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NOTES AND MEMORANDA ON MINORITIES
327
budget of the Provincial Governments and the Centre for providing suitable
housing accommodation to the members of the Scheduled Castes.
4. Attitude towards division of India
The attitude of the Scheduled Castes towards the division of India in any
shape is quite clear and unambiguous. The Scheduled Castes want a united
India.
5. Indian States
Indian States should be included in the All India Union. Their represen¬
tation in the Federal Legislature should be according to their population,
representatives to be elected by the States people. The representation of
the Scheduled Castes should be in the same manner as in British India.
The Minorities Committee should make immediate recommendation for
electing members of the Scheduled Castes on the Constituent Assembly
according to the recommendations erf the British Cabinet Mission, i.e., one
representative for every ten lakhs of population.
6. Franchise and Electorate
The Scheduled Castes want adult franchise and joint electorate with
reservation of seats on population basis in the Provinces as well as in the
Centre.
7. Constituencies
Territorial constituencies. A committee should be set up for delimita¬
tion of constituencies. The committee should have representatives of the
Scheduled Castes on their population basis.
8. Form of Election
(a) Direct Election: Of the Federal Assembly, the election may be
indirect, members of the lower chamber voting on the basis of proportional
representation by single transferable vote.
(b) Seats: One seat for every one lakh of population for all communi¬
ties including the Scheduled Castes in the Provincial Assembly. One
seat for every million of population for all communities including the
Scheduled Castes in the Central Assembly.
9. Separate Portfolio
For the general alround improvement in the condition of the Scheduled
Castes so as to bring them in level with other castes, a special portfolio
called “Scheduled Castes Uplift” should be created by the Provincial
Governments and the Centre.
10. Criminal Tribes
The term ‘Criminal Tribes’ must be abolished, and the present Act
known as the Criminal Tribes Act must be repealed. The members of the
Criminal Tribes who are largely nomadic must be settled and must be
classified under Scheduled Castes, so that they will get all opportunities
for progress as the Scheduled Castes are seeking.
11. Martial Races
The Scheduled Castes should be treated as martial races and separate
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regiments should be maintained comprising the members of Scheduled
Castes.
12. Schedule
The communities or castes which have disabilities, social or religious,
should be included in the list of Scheduled Castes.
13. Nomenclature
The Scheduled Castes should be referred to by only one name and that is
the “Depressed Classes”. They should not be mentioned by any other
name in the Constitution.
All these concessions, facilities, weightage, special rights etc. should have
effect for a period of at least 30 years after which period both the commu¬
nities should be consulted regarding the further continuance of the facili¬
ties, concessions etc., or any modification thereof.
14. Chief Commissioners’ Provinces
Representation should be given to the Scheduled Castes of the present
Chief Commissioners’ Provinces. Particularly, the Scheduled Castes of
Delhi Province should get proportionate representation in the Central
Assembly.
15. Attitude towards transfer of Berar to Nizam
The Scheduled Castes of Berar do not desire that Berar should be trans¬
ferred back to the Nizam.
16. Representation of Minorities in Foreign Countries
Representation should be given to Scheduled Castes in foreign countries
on problems relating to labour immigration and social laws.
(f) Reply to the Questionnaire rbceived from P. K. Salve
April 3, 1947
1. Nature of safeguards
They should be incorporated in die Constitution in the same manner as
the fundamental rights.
Their importance to the minorities is as great as that of the fundamental
rights to every citizen. India is committed to the framing erf a federal
constitution and consequently the safeguards incorporated in the Constitu¬
tion should be placed beyond the control of the legislative and executive
organs of Government and no modification or amendment should be
permissible except in the manner in which a fundamental right could be
modified or amended. The reason for this is that the Government is the
creature and servant of the Constitution and not its creator or master.
(2) They should be subject to judicial reviews by a federal judiciary.
Scope: (1) In their scope they should include political, economic, cultural
and religious matters.
(2) The safeguards should be extended to territorial minorities, for example
the Hindus of Sind and the Muslims of the Central Provinces.
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2. Political safeguards for the Union of India, Groups and the Provinces
(1) Political equality in the sense that equal opportunities should be made
available.
(2) Election by joint electorates with reservation of seats for a period of
ten years. This should apply also to local bodies. The franchise shall be
on the basis of universal adult suffrage.
(3) The minorities should enjoy equal rights with others before the law
and should not. because of their religion or caste or sex. be subject to any
public disqualification or discrimination in respect of political, civic, eco¬
nomic, cultural or religious rights.
(4) No disability should attach to any citizen by reason of his religion,
caste, creed or sex in regard to public employment, including armed forces,
office of power or honour and in the exercise of any trade or calling.
(5) All citizens should have equal rights and duties in regard to wells,
tanks, roads, schools and places of public resort maintained out of State
or local funds, or dedicated by private persons for the use of the general
public.
3. Economic safeguards in the Provinces
(1) The State should bear expenditure to develop free land colonization
schemes to enable the poorer section of the minorities to become
agriculturists.
(2) The State should provide free or cheap lands for housing those
in poor circumstances.
(3) The State should institute special ‘Public Health Services’ for better¬
ment of health.
(4) No discrimination in industries, commerce, trade or calling.
(5) The State should encourage by subsidies and other means adequate
participation by minorities in industries and commerce in the country.
4. (a) Religious safeguards
(1) Every citizen shall enjoy freedom of conscience and the right freely
to profess, practise and propagate his religion in private and public subject
to public order and morality.
(2) Every minority community recognised by the State has the right of
organizing collective and public services; it may possess and acquire mov¬
able and immovable property, administer and dispose of it; it remains in
possession and enjoyment of its endowments and funds, and of religious,
educational and charitable institutions.
No religious community may, however, be in opposition to the statutes
of the State.
4. (b) Educational
(1) The State should provide for free and compulsory education of poor
boys and girls in primary and secondary schools and in special schools
for technical education. In case of aptitude higher education should be
provided free to boys and girls in poor circumstances.
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FRAMING OF INDIA’S CONSTITUTION
(2) No discrimination on the grounds of religion, creed, caste
or sex in the matter erf admission to services in any educational institu¬
tions of secular character. (All communal education should be abolished).
4. (c) Cultural
(1) Same as educational, religious.
(2) No interference with language and festivals subject to requirements
of law and order.
5. To make safeguards effective
(1) Minority Commission to be established with adequate and full
representatives of minorities. In questions exclusively pertaining to any
minority special consideration be given to the view of die minority.
(2) To ensure justice and fairplay in all Public Service Commissions
(including the armed forces) and other bodies concerned with appointment
in the Centre, Group or Province adequate representation be given to
minorities.
(3) To ensure security of life and property special tribunals shall be
established for speedy justice and for granting compensation in case of
damage to life and property.
(4) In the Centre, Groups and Provinces at least one ministerial appoint¬
ment should be from each of the minorities.
(5) In the Cabinet of each Province there should be one Minister of a
community holding a portfolio for the rights of the minorities.
6. Proposals to eliminate safeguards
(1) No time limit should be fixed.
(2) Every three years there should be a review of the position of the
minorities, their progress in education, commerce and industry by a com¬
mission with a view to determine whether special safeguards are further
needed and if so to what extent.
(3) Gradual replacement of all communal educational institutions by the
State educational institutions.
(4) Refusal on the part of the State to give recognition to political parties
on the basis of religion or faith.
(5) Preaching of hatred against any community or class or instigation erf
communal passion should be penalized as treason.
(6) Mixed armies consisting of all communities be formed.
(g) Rbply to the Questionnaire received from Jagjivan Ram
April 3, 1947
1. What should be the nature and scope of the safeguards for a minority
in the new Constitution ?
The nature of the safeguards should be such as
(i) to ensure protection to religious and racial minorities (for example,
Christians and Aboriginals) from destruction, and
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(ii) to accelerate the assimilation of the other minorities (such as the
Scheduled Castes) in the parent body by bringing them to an equal
level with others in that community.
Such safeguards should cover the fields enumerated in question Nos. 2,
3 and 4. Many of the safeguards can be provided in the fundamental
rights. The following among others may be included in the fundamental
rights in the Constitution:
1. All citizens are equal before the law.
Men and women have fundamentally the same civic rights and duties.
Public legal privileges or disadvantages erf birth or rank shall be abo¬
lished. Titles shall be simply a part of the name and shall no longer be
conferred.
2. Personal liberty is inviolable. No encroachment on or deprivation erf
personal liberty by any public authe>rity is permissible except in virtue of
a law.
3. The residence of every citizen is an inviolable sanctuary for him.
exceptions are admissible only in virtue erf laws.
4. The secrecy of ce>rrespe»dence and erf the postal, telegraph and of
telephone services is inviolable, exceptions may be permitted only by law.
5. Every citizen has the right, within the limits of general laws to
express his opinion freely, by word of mouth, writing, printing matter, or
picture, or in any other manner.
6. All citizens have the freedom of domicile and of change erf
domicile.
7. All citizens have the right without notification or special permission
to assemble peaceably and unarmed.
8. All citizens have the right to form unions and associations for
purposes not in contravention of the penal laws. This right may not be
restricted by preventive regulations. The same provisions apply to religious
union and associations.
9. Every union is at liberty to acquire legal rights in accordance with
the provisions of the civil code. These rights shall not be refused to a
union on the ground that its objects are of political, social or religious nature.
10. The freedom and the secrecy of election are guaranteed. Details are
to be determined by electoral laws.
11. All citizens of the State, without distinction of caste, or creed are
eligible for public offices, as provided by law in accordance with their
qualifications and abilities.
12. The organization of economic life must correspond to the principles
of justice, and be designed to ensure for all a life worthy of a human
being. Within these limits the economic freedom of the individual be
guaranteed.
Legal compulsion is permissible only in order to enforce rights which
are threatened, or to subserve the pre-eminent claims of the common weal.
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FRAMING OF INDIA'S CONSTITUTION
Freedom of trade, industry and occupation is guaranteed without any
distinction of caste or creed.
13. All citizens are equal before the law and possess equal civic rights.
There shall be no law, civil or penal, substantive or procedural, of a
discriminative nature.
14. It is the moral duty of every citizen without prejudice to his personal
liberty, to make such use of his mental and bodily powers as shall be
necessary for the welfare of the community. Every citizen must be afford¬
ed an opportunity to gain his livelihood by economic labour. Where no
opportunity for his work can be found for him, provision shall be made
for his support. Details shall be determined by special law.
Special protection shall be extended to women and young persons
engaged in occupations injurious to health.
13. Usury in every form is prohibited.
16. Extraordinary tribunals shall not be permitted. No person shall be
withdrawn from the jurisdiction of his lawful judge. No person shall be
tried on any criminal charge save in due oourse of law.
17. All citizens have the right to free elementary education and of ad¬
mission into any educational institution maintained or aided or recognized
by the State without any distinction of caste, colour or creed.
18. No person attending any school receiving State aid or other public
money shall be compelled to attend the religious instruction that may be
given in the school.
19. Officials are the servants of the community and not of any party.
The land, sea and air forces of the whole country shall be above and
outside personal, regional or party affiliations, shall be loyal to the State,
and shall love and protect the people.
No party and individual may utilize the armed strength as an instrument
in the struggle for political power.
20. All religions shall be equal before the law.
21. Every citizen shall have the right to keep and bear arms in accord¬
ance with the regulations made in that behalf.
22. All begar and compulsory or forced labour in whichever form exist¬
ing anywhere shall cease and shall be dealt with as a cognizable offence.
The Constitution shall contain a provision that no law, order, rule or
regulation infringing any of the fundamental rights shall be enacted or
issued.
2. What should be the political safeguards of a minority—(a) in the Centre,
(<b ) in the Provinces?
Political safeguards for the Scheduled Castes. (This may apply to other
minorities as well.)
(a) In the Centre (Union): Seats shall be reserved for the Scheduled
Castes proportionate to their population in :
(i) Legislatures
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333
(ii) Services of all categories (civil including judiciary and military)
(iii) Executive (Ministry, Cabinet)
(iv) Commissions and committees which are statutory, standing, or may
be formed from time to time.
(v) Local bodies
(a) The post of the executives shall rotate by turn among the several
communities represented in the local body concerned.
(A) Seats should be reserved for the Scheduled Castes in all services
in local bodies proportionate to their population.
Scheduled Castes have never demanded weightage for themselves and
have always insisted that no weightage should be given to any community.
If weightage is to be given to any community it should come from the
share of the majority community and the Scheduled Castes should also
get proportionate weightage. If representation is to be given to special interests
it should come from the share of the majority and not of the minorities.
Election to all seats reserved for the Scheduled Castes in Legislatures
and local bodies shall be by the system of (i) joint electorate with the
caste Hindus; (ii) adult franchise; and (iii) distributive voting in plural
constituencies.
Scheduled Castes shall be free to contest unreserved seats in elective
bodies and compete for unreserved seats in services and executives.
3. What should be the economic safeguards of a minority (a) in the Centre,
(h) in the Provinces?
Economic safeguards: Besides the fundamental rights Nos. 12, 14 and
22, the following provision should be made in the constitution of the
State (Centre or Provinces as the case may be):
(i) All key and basic industries shall be owned and run by the State.
(ii) All land shall be nationalized.
(iii) There shall be a housing and homestead board to secure suitable
homestead land and provide healthy houses to the Scheduled Castes.
The details shall be determined by law.
The distribution and use of land shall be supervised by the State in such
a way as to prevent abuse and with a view to ensuring to every
family which has no objection whatsoever in working itself thereon,
a dwelling and economic holding suited to its needs.
(iv) Large forested estate in private ownership shall be expropriated
by law with such compensation as may be determined and become
the property of State.
(v) All mineral rights shall vest in the State.
4. What should be the religious, educational and cultural safeguards for
a minority?
A. Religious safeguards: Fundamental rights should provide ample safe¬
guards. Every religious minority shall be ensured freedom to practise its
own. faith and have its own places of worship.
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FRAMING OF INDIA’S CONSTITUTION
Observance of untouchability in any shape or form by any person in
public places, places of public worship, public institutions, and places esta¬
blished or maintained at public cost and for the use of the public should
be regarded as a cognizable offence.
B. Educational: Besides fundamental rights Nos. 17 and 18—
(i) Provision shall be made by every Provincial Government for the
free education of the students of the Scheduled Castes at all stages
in all types of educational institutions maintained, aided or recog¬
nized by Government or local bodies.
(ii) Provision shall be made in the budget of every Provincial Gov¬
ernment for adequate sums of money each year for ameliorative
measures for the Scheduled Castes.
(iii) Provision shall be made in the budget of the Centra] Govern¬
ment for adequate sums of money each year for granting stipends
to Scheduled Castes students for higher and specialised training in
science, arts, etc., in India and abroad.
(iv) Provision shall be made for proportionate representation of the
Scheduled Castes in Senates, Syndicates, Courts, etc., of Universities
and on governing bodies of all educational institutions.
C. Cultural and Social: Fundamental rights should indude provisions
for the protection of the language, culture, etc., of the minorities.
No disability, social, civil and religious, shall attach to any person on
account of his birth in a particular caste in, the sodety.
All dtizens shall have equal rights and duties in regard to roads, places
or public resort, water-fountains, reservoirs, tanks, wells, hydrants, rivers,
bathing ghats maintained out of State or local funds or dedicated by private
persons for the use of general public.
Criminal Tribes Act shall be repealed.
No person shall be debarred from acquiring landed property in any
part of the State on account of his birth in a particular caste.
It shall not be obligatory on any person simply because he is bom in
a particular caste in Hindu society to perform certain social and religious
functions. No person who performs certain religious or social functions
in the Hindu sodety shall refuse his services to some castes of the
Hindus.
5. What machinery should be set up to ensure that the safeguards are effec¬
tive?
There shall be an independent Minorities Commission to deal with those
rights which are not enforceable by a court of law, in the Centre and in
every Province.
Its composition shall be as follows:
1. One judge of the Supreme Court (of the Provindal High Court
in the case of a Province) who will be ex-officio chairman of the
commission.
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335
2. Three members of the Legislative Assembly elected by the members
of the minority community in the Assembly concerned.
3. Three members of the minority communities nominated by the
Government.
The commission shall have power—
(а) to call for any information from the Government.
(б) to call for any person, official or non-official to appear before it
and give evidence.
(c) to examine laws or rules which operate against a minority or
minorities.
(d) to examine acts of omission or commission on the part of the
executive in administration of the privileges and facilities granted
to the minorities and submit report to the Government.
Procedure: The commission shall examine on its own initiative or on
application from any person of the aggrieved community, in the matter
of any infringement of the rights, privileges or facilities of the minorities,
and submit its findings with a recommendation to the Government
The Government shall, thereupon, take steps, legislative or administra¬
tive as the case may be, to give effect to the recommendations of the
commission.
6. How is it proposed that the safeguards should be eliminated ? In what
time and under what circumstances ?
Some of the safeguards shall have to remain for all times in the Consti¬
tution such as those guaranteeing religious and cultural freedom to religious
and racial minorities. Political and other safeguards for these minorities
may be eliminated after these minorities have been convinced that their
rights shall be amply protected by the majority community even if
they (minorities) are not represented in the legislature or the
administration.
The various safeguards provided for the Scheduled Castes may be eli¬
minated as soon as untouchability totally disappears. It is, no doubt,
difficult to ascertain the total disappearance of untouchability but for this
purpose three criteria may be laid—
(i) When all Hindu temples are open to all the castes in the Hindu
society without any distinction or discrimination.
(ii) When water or eatables of any caste shall not be polluted by the
touch of any other caste of the Hindu society.
(iii) When in all religious and social functions of the Hindus, persons of
all castes of Hindus may participate without any discrimination.
As soon as this stage is reached, an official resolution seeking the eli¬
mination of the safeguards for the Scheduled Castes may be framed by the
Centra] Government. A copy of this resolution shall be sent to every
Provincial Government. The Provincial Government shall move this reso¬
lution in the Provincial Assembly. The resolution shall be deemed passed
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FRAMING OF INDIA’S CONSTITUTION
if it is passed by a two-thirds majority of the House and if two-thirds of the
members of the Scheduled Castes present and voting, vote in favour of the
resolution. The resolution shall be moved in the Central Assembly if it
has been adopted by all the Provincial Governments in the manner pres¬
cribed above. The resolution shall be deemed to have been passed by the
Central Assembly only if it is passed by a two-thirds majority in the whole
House and if two-third members of the Scheduled Castes present and
voting have voted in favour of the resolution.
No resolution to the same effect shall be brought wi thin the life of the
same Legislature within two years of the rejection of the first resolution.
All the safeguards provided for the Scheduled Castes shall be incorpo¬
rated in the Constitution of the units (State) which may join the Union
at the very beginning or at a subsequent stage.
(h) Memorandum cm Minorities by S. P. Mookerjee
April 17. 1947
Fundamental and Minority Rights
1. The Indian Union is a sovereign federated republic.
2. All powers of government and all authority, legislative, executive and
judicial in the Indian Union, are derived from the people of the Indian Union.
(Ref. Article 2 of the Constitution of the Irish Free State, 1922).
Political Rights in general
3. All citizens shall be equal before the law. irrespective of religion, caste,
creed, colour or sex and there shall be no discrimination made either through
legislation or administration. (Ref. Article 123 of the Soviet Constitution).
4. All persons bom or naturalized in the Indian Union and subject to the
jurisdiction thereof are citizens of the Indian Union; and all citizens of the
Indian Union are citizens of the Province or the federated State wherein they
reside. Every citizen is free to move throughout the Union and stay and
settle in any part thereof, to acquire property and to follow any trade or
calling, and to be equally entitled with regard to facilities for education,
public employment and legal protection in all parts of the Union. [Ref. Art.
l(xiv). Resolutions of All-India Congress Committee, Bombay, August 1931].
5. All peoples or races of the Indian Union are component parts of the
Indian nation and shall be equal. (Ref. Art. 5 of the Chinese Constitution).
6. Every citizen dial! have freedom of speech, freedom of association, and
freedom of expression.
7. No person shall be arrested, detained, tried or punished, nor shall his
dwelling or property be entered, sequestered and confiscated save by an
order of a competent court and according to law. [Ref. Art. 1 (viii). Resolu¬
tions, A.I.C.C., Bombay, August 1931].
8. E\ery citizen shall enjoy freedom of conscience and the right freely to
profess and practise his religion and religious observances subject to public
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NOTES AND MEMORANDA ON MINORITIES
337
order and morality. Everybody shall have the right to build places of worship,
but the location of such places of worship shall not interfere with the freedom
of any citizen to use a public highway without let or hindrance. {Ref. Art. 1
(ii). Resolutions of A.I.C.C., Bombay, August 1931].
9. No citizen shall be subjected to any disability or prejudiced by reason of
his religion, caste, creed, colour, {dace of birth and descent, or sex, in regard to
public employment, office of power or honour, and in the exercise of any trade
or calling. [Ref. l(v) of the Resolutions of A.I.C.C., Bombay, August 1931].
10. All children shall have the right to free education upto the fourteenth
year of age, and they shall have the right of admission without any distinc¬
tion of caste, colour, creed or sex, in any educational institution maintained
by the State, except in institutions founded, run or maintained by, or for any
particular sector or community. Education appropriations shall constitute no
less than 30 p.c. of the total amount of the provincial, district and municipal
budgets. (Ref. Art. 134 & 137 of the Chinese Constitution).
11. There shall be no State religion. The State shall observe neutrality in
regard to all religions. [Ref. Art. l(ix). Resolutions A.I.C.C., Bombay,
August, 1931].
12. The franchise shall be on the basis of universal adult suffrage. [Ref.
Art l(x). Resolutions AJ.C.C., Bombay, August 1931].
13. The State shall confer no titles. [Ref. Art. l(xii). Resolutions AJ.C.C.,
Bombay, August 1931].
14. Every citizen shall have the right to keep and bear arms, in accordance
with regulations and reservations made in that behalf. [Ref. Art l(vii).
Resolutions, A.I.C.C., Bombay, August 1931].
15. Every citizen shall have the right to present petitions, lodge complaints
and institute legal proceedings in accordance with law. (Ref. Bill of Rights,
1689 of the English Constitution, and Art. 18 of the Chinese Constitution).
16. Every citizen shall have the right to compete in accordance with law.
in State examinations. (Ref. Art. 20 of the Chinese Constitution).
17. Every citizen shall have the freedom of secrecy of correspondence. Such
freedom shall not be restricted except in accordance with law. (Art. 12 of
the Chinese Constitution).
18. Any public functionary who illegally infringes upon any private liberty
or right shall, besides being subject to disciplinary punishment, be responsi¬
ble under criminal and civil law. The injured person may also, in accordance
with law, claim indemnity from the State for damages sustained. (Art. 26 of
the Chinese Constitution).
Minority Rights
1. The culture, language and script of the minorities and of the different
linguistic areas shall be protected. [Ref. l(iii). Resolutions of A.I.C.C.,
Bombay. August 1931].
(a) All minorities shall have equal right to establish, manage and control
at their own expense charitable and religious institutions, and start educational
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FRAMING OF INDIA’S CONSTITUTION
schools and colleges with freedom to use their own language and to practise
their own religion therein.
(b) If in any village, or in a group of contiguous villages or towns a demand
is made on behalf of a prescribed number of children of a minority community
for a separate educational institution for them, the authorities concerned
shall set up such an institution for suitable instruction through the language
and script of the community.
(c) No child attending any school receiving State aid shall be compelled
to attend religious instruction imparted in that school, or participate in reli¬
gious observances, other than his own, that may be practised in that school.
2. (a) All schools, colleges, technical and other institutions established by
the minorities shall be entitled to the same assistance from the State and
local funds, as similar institutions for the general public or the majority
community.
(b) Any racial, religious or linguistic minority in any province may demand
and secure the establishment erf a separate authority or separate authorities
for the primary, secondary and higher education of its members. In that
case, the government shall provide to such authority or authorities financial
aid which shall bear the same proportion to total government expenditure for
primary, secondary, or higher education, as the case may be, as the proportion
of the numerical strength of the minority to the total population of the
Province concerned (Art. 121 of the Soviet Constitution).
3. No Bill, nor any clause thereof, nor a resolution introduced by a
member of a legislature affecting one or the other communities, which question
is to be determined by the members erf that particular community in the
legislature concerned, shall be proceeded with, if three-fourth of the members
of that community in that particular legislature oppose the Bill, or any clause
thereof, or the resolution.
(Lucknow Pact, 1916; also ref. to the Resolution erf the Madras Congress,
1927, and the criticism of the Montagu-Chelmsford Report regarding the
article in para. 1964 of the Report.)
4. (a) An adequate share for the minorities in the legislatures and e>ther
self-governing authorities should be secured by joint electorate and reserva¬
tion of seats for recognised minorities. If any weightage is to be given it
should be on a uniform basis in the Centre and in the Provinces. In no
Province should any weightage be given to the majority community, nor the
minority be given less representation than is due to it on population basis.
Reservation of seats should cease after twenty years or earlier, if the
communities concerned agree.
(b) The executive governments in the Provinces and at the Centre during
the period referred to in clause (a) shall be of a composite nature reflecting
the proportion of each community in the various legislatures, and enjoy
the confidence of the minority community or communities concerned.
(The cabinet system in Canada depends on convention.)
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339
5. During the transitional period aforesaid SO per cent posts in all public
service shall be recruited purely on merit as the result of open competitive
examination, and the remaining SO per cent filled on population basis by
selecting the best candidates from each community. Communal inequalities,
if any, in the first half should not be made up from the other half. This
latter percentage should be reduced after every five years, by progressive
stages and entirely done away with after twenty years.
6. Communities and groups of people in a Province who together profess
a particular religion, or speak a particular language, or belong to a particular
race, and who are not a majority of the total population of the Province,
but are at least fifty thousand in number, shall be declared as minorities and
the protection of their interests shall be guaranteed to them.
7. All citizens have an equal right and access to and use of, public wells,
reservoirs, tanks, hotels, restaurants, parks and all other places of public
resort. This shall not apply to religious institutions of any community:
Provided that no citizen belonging to a particular religious community shall
be prohibited from entering or using a public place of worship of that com¬
munity for religious purposes, merely on the ground that he belongs to a
particular caste or section within that community (Sapru Committee p. 219,
para. 307(5), proviso added).
No public authority or court of law shall, in carrying out the functions
and duties entrusted to it under any law, recognise any custom or usage
imposing a disability on any person on the ground that he belongs to a
particular caste or an aboriginal tribe (Sapru Committee p. 219).
8. The rights of the Sikhs for the use of the jhatka meat shall be protected.
(Sapru Committee p. 242).
9. No law shall be enacted to restrict in any manner or to any extent, the
manufacture, sale, keeping and wearing of kirpans by the Sikhs (Sapru
Com. p. 242).
10. If the majority of citizens who constitute a minority within a Province
living in more or less contiguous areas and numbering at least seven millions
desire to form themselves into a separate Province for linguistic, cultural or
economic reason, such Province may be formed in accordance with the
following conditions:
(a) the proposal must be initiated by at least one-fourth of the represen¬
tatives of such citizens in the Lower House of the Provincial Legislature,
and supported by at least two-thirds majority of the members concerned.
(b) The resolution so adopted shall be laid before the Provincial Legis¬
lature, and if agreed to by it, shall be transmitted by the Provincial Govern¬
ment to the Union Government with the request to take necessary steps
to give effect to the demand.
(c) If the Provincial Legislative Assembly does not agree, then the pro¬
vincial government shall transmit the resolution and the proceedings of
the Assembly with its observations to the Union Government If the
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Union Government is satisfied as to the desirability and feasibility of the
new proposal, then it shall appoint a Boundaries Commission and make
arrangements to give effect to the demand, provided that the Union Gov¬
ernment, may, if it chooses, order a plebiscite amongst the adult mem¬
bers of the population within the area concerned, before it makes a
final decision.
11. If the majority of citizens who live in more or less contiguous areas,
and who constitute a minority within their Province, desire to be amalgama ted
with another contiguous Province, for linguistic, cultural, or economic
reasons, a redistribution of provincial boundaries may be made in accordance
with the conditions laid down in the previous clause.
12. The aforesaid rights shall be incorporated in the Constitution, and shall
be protected and enforced by Government. There shall be a permanent
Minorities Commission under the Union Government which in consultation
with that Commission, shall immediately after the first operation of this
Constitution frame the necessary rules and procedure for protecting these
rights (Ref. Art. 87-97 of the Chinese Constitution which have set up a
Control Yuan to safeguard the fundamentals of the constitution).
13. In every Province also there shall be a permanent Minorities Commis¬
sion, consisting of the representatives of the minorities concerned to advise
the Provincial Government and Legislature in regard to the protection of
the interests and rights of the minorities. If the Provincial Government fails
to protect the rights of the minorities, the commission may ask for the inter¬
vention of the Union Government (Ref. Art. 87-97 of the Chinese Constitu¬
tion which set up a Control Yuan).
No citizen of the Indian Union shall be debarred from approaching the
Federal Court for relief against the infringement of any of the aforesaid rights.
In case any Provincial Government fails to implement any of these rights,
or in case any decision of the Minorities Commission either at the Centre
or in the Province, or any decision on an appeal from an aggrieved person
is not duly executed by the proper provincial authority in that behalf, then
and in every such case, as far as only as the circumstances of each case
require, the Union Government may make remedial laws for the due protec¬
tion of such rights.
14. Laws, either of the Provinces or of the Union, in conflict with the
Constitution are null and void. (Ref. Art. 140 of the Chinese Constitution).
15. Administrative order, either of the Provinces or of the Union, in con¬
flict with the Constitution are null and void. (Ref. Art. 141 of the Chinese
Constitution).
16. The interpretation of the Constitution shall be done by the Federal
Court.
Electorates: Provincial and Union
17. The franchise shall be on the basis of universal adult suffrage. Elections
to legislatures, provincial and Union, and to all local self-governing bodies
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341
shall be through joint electorates, with reservation of seats for minorities
according to population unless a particular minority does not wish to have
any seats reserved for them.
18. In Provinces where the Hindus are in a minority, they shall be treated
as a minority and classed as such for the purpose of reservation of seats, and
not included, as at present, in the 'General List 9 .
19. In a joint electorate whether for the Centre or for the Provinces, or for
the local bodies, a candidate must secure at least 33 per cent votes of
his own community and at least 10 per cent from the other community or
communities.
Safeguards for the Services
1. Regarding protection of Government servants belonging to minority com¬
munities in the Provinces: It is not possible to give any special protection
to officers belonging to minority communities except by ensuring the indepen¬
dence and impartiality of the Provincial Public Service Commission, and
its composition in such a manner as to secure the appointment of the real
representatives of these communities on the commission in accordance
with the proportion of their population to the total population of the
Province.
It is accordingly suggested that the following provisions should be made
in the Provincial Constitution:
(i) There shall be a Public Service Commission in each Province consist¬
ing of a chairman and such number of other members as may be fixed
by the Provincial Government, provided that the communities should be
represented in the commission in accordance with the strength of their
population in the Province.
(ii) Government will appoint the members of the commission provided
that the appointment of a member of a minority community of the Pro¬
vince shall be subject to approval by the Minority Commission of the
Province by a two-third majority.
(iii) The chairman or a member of the Public Service Commission shall
hold office until he attains the age of sixty years, provided that
(a) the chairman or a member may, by a letter under his hand addres¬
sed to Government, resign his office.
(b) the chairman or a member may be removed from his office by
Government on the ground of misbehaviour or of infirmity of mind or
body, subject to the condition that a member belonging to a minority
community shall not be removed until the Minority Commission has been
consulted and that the commission has reported that the member ought
on such ground to be removed.
(iv) On ceasing to hold office
(a) the chairman of the commission shall be ineligible for further em¬
ployment under the Provincial Government or for election to the legis¬
latures of the particular Province;
(b) the member of a commission shall be eligible for appointment as
the chairman of the commission but not for any other employment
23
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FRAMING OF INDIA’S CONSTITUTION
under Government and shall not be eligible for election to the legisla¬
tures of the particular Province.
Since the security of officers belonging to minority c ommunit ies is very
closely related to the security and protection of the minorities themselves,
it should be permissible for the Minorities Commission to discuss and
recommend the general principles relating to recruitment and control of
public services.
The following shall be the fundamental principles:
(a) For recruitment to public services no share shall be set apart or
earmarked for the majority community.
(b) If a share is set apart for any minority community, shares should
be set apart for other minority communities also.
(c) No one shall be appointed to a gazetted post or to a non-gazetted
post above a certain specified rank except on nomination by the
Public Service Commission which must be accepted.
(d) Promotions from one gazetted rank to another or from non-
gazetted rank to gazetted rank should be similarly regulated by
decisions of the Public Service Commission which must be
accepted.
(e) All cases of disciplinary action against gazetted officers shall be
laid before the Public Service Commission and the commission’s
confirmation obtained before any punishment can be awarded.
(0 For cases of disciplinary action against inferior officers the ulti¬
mate appeal shall lie to the Public Service Commission.
(g) The Public Service Commission shall have the right of calling for
the records of a case of disciplinary action at any stage and of making
such directions as it thinks fit (including the quashing of the
proceedings).
(h) The Public Service Commission shall have the right of its own
motion and after what inquiries it considers necessary to direct that
disciplinary proceedings should be set up against an officer.
(i) There shall be a Public Service Commission at the Centre and in
each Province consisting of three members of whom two should
belong to minority communities (though not to the same minority
community) and one should be a former High Court Judge.
(j) The appointment of a person as a member of the Public Service
Commission must be confirmed by a two-thirds vote in the legislature.
(k) No member of a Public Service Commission may be removed
from office unless such removal is (1) recommended by a special com¬
mission consisting of three High Court Judges and (2) confirmed by
a two-thirds vote in the legislature.
(l) (Since the adoption of the above principles would probably involve
a large volume of work coming to the Public Service Commission),
the commission should have powers of appointing officers and
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NOTES AND MEMORANDA ON MINORITIES
343
examiners to assist it in its work as also to set up selection
boards.
(m) (Since it would be possible for the Provincial Government to
avoid the c omm ission’s control in disciplinary matters by the
appointment of officers on contract and with the provision for the
termination of contract by notice), officers appointed on contract
shall be appointed with the specific concurrence of the commission
in each case.
(n) Any adverse comment regarding any officer shall be communicated
to the officer concerned, and the officer shall have the right to appeal
in the ultimate resort, to the Public Service Commission, against the
adverse comment
(i) Memorandum on the Anglo-Indian Community by Frank Anthony,
President, All-India Anglo-Indian Association
April 1947
EXTRACTS
# * *
Education and Instruction in our Mother-Tongue
We place the greatest emphasis cm a specific clause in the Constitution
somewhat similar to section 83 in the Government of India Act of 193S.
The position of the Anglo-Indian community, vis-a-vis its educational facilities,
is different from that of any other community in India. It is essential that
Anglo-Indian schools should continue as a distinct entity within the educa¬
tional system of the country.
The community claims the retention, and adequate provision for the main¬
tenance, of its schools by the State as a fundamental right, the right of a
minority to preserve its religion, its culture, its language and its way of life.
The Christian religion of the Anglo-Indian, the English language as his
mother-tongue, the Anglo-Indian culture and way of life are assumed. These
are characteristics which are inherent in the religion, descent and traditions
of the community. If the Anglo-Indian community is to preserve its cultural
heritage, such preservation is inseparable from the retention and continuance
of the distinct identity of Anglo-Indian schools. This is the universal and
ardent desire of the community—a desire common to and claimed by every
minority seeking to preserve its religion, its culture, its language and its way
of life. The community places the greatest importance upon a specific clause
being introduced in the new Constitution whereby educational grants for the
benefit of the community shall continue to remain a statutory obligation on
Provincial Governments. It is, however, claimed that the basis on which
grants are assessed and the terms of the present section require suitable
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amendment. Experience of the actual working of the section indicates the
need for ensuring that the educational grants made for the benefit of the
community be adequate to maintain the present standards of its schools and
provide for further development. Under conditions which obtain at present
the grants are insufficient for both purposes. Under the terms of section 83
of the Government of India Act of 1935. Provincial Governments are required
to make annual grants for the benefit of the Anglo-Indian community, “not
less in amount than the average of the grants made for its benefit in the
10 financial years ending on the 31st March, 1933.” This assessment bears
little or no relation to the present-day expenditure of Anglo-Indian schools.
With the general rise erf the cost of living, in common with other schools,
the cost of maintaining Anglo-Indian schools has risen considerably during
the past decade. There has been an increase of 42 per cent in the total
expenditure. It is essential that Government should recognize and provide
for this increase in the cost of maintenance. Unfortunately, no cognizance
has been taken of this increase. Despite the heavy rise in total expenditure,
the grants to our schools have remained static. The proportion of the cost
met by Government has consequently declined. Further, while section
83 provides for a reduction of the grants to Anglo-Indian education pro rata
to any reduction in the total grant to education made by the Provincial
Government, it makes no provision for a pro rata increase. Under these
terms, the development of its schools and the community’s participation in
the benefits accruing in the progress and reform of education become
impossible.
In the application of the statute by the majority of Provincial Governments,
what was meant to be a statutory minimum has tended to become a statutory
maximum. It is generally argued that as the per capita expenditure by the
State on Anglo-Indian education is higher than that prevailing for other
communities, no increase in the grants is justifiable. The plea is here made
for a sympathetic approach to the whole question. This approach can be
helped by consideration of the following facts :
(1) The special need of the Anglo-Indian community in the matter
of its education has been recognised repeatedly. It was in the
pursuance of this recognition by the Irwin Committee, which
consisted of distinguished Indians such as the Hon’ble Dr. Jayakar
and Sir Mohd. Iqbal, that special grants-in-aid for Anglo-Indian
education were provided under section 83 of the Government of
India Act of 1935.
(2) The Anglo-Indian community is, no less than other communities, an
Indian c ommuni ty, rooted in Indian soil. In this connection we would
draw attention to section 93 of the Canadian Constitution by which
a seemingly insuperable difficulty between Roman Catholics and
Protestants was overcome by offering generous terms in the matter
of education to denominational schools.
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NOTES AND MEMORANDA ON MINORITIES
345
(3) Higher expenditure on Anglo-Indian education rises from certain
inevitable facts such as :
(a) The natural standard of living of the community.
(b) The fact that half the number of Anglo-Indian schools are
boarding establishments and the cost to Government per pupil
includes boarding charges which are a non-existent or negligible
item in the case of other communities.
(c) The admittedly higher standards, particularly as to training and
discipline, obtaining in these schools.
(4) While Government meets almost cent per cent the expenditure of
schools for other communities, Anglo-Indian parents meet 50 per cent
of the expenditure by payment of fees. The average annual cost per
child to the Anglo-Indian parent in 1944-45 was Rs. 160 whereas that
to the parent in a non-Anglo-Indian school was only Rs. 5.
(5) Although the Government grant may amount, per capita, to much
more than what is granted to other communities, yet the absolute
amount is comparatively small.
(6) The cost to Government per pupil as envisaged in the Sargent
Scheme will be Rs. 32 at the primary stage, Rs. 55 at the middle school
stage and Rs. 109 at the high school stage. In 1944-45 the average
cost to Government per Anglo-Indian pupil was Rs. 71. This shows
that the cost of Anglo-Indian education is not more cm an average
than that envisaged by the Sargent Scheme for pupils of other
communities.
(7) A point to be remembered is that while these grants have been made
to Anglo-Indian schools, most of the schools admit up to 40 per cent
of pupils from other communities which means that, in fact, these
grants are expended also cm the education of a large number of pupils
of other communities, whether Hindu, Muslim or Sikh.
(8) While Municipal and District authorities maintain schools for other
communities, at considerable cost, no such schools are provided for
Anglo-Indians.
(9) These schools represent a real national asset. A large percentage erf
members of other communities also attend these schools. The standard
of education envisaged by the Sargent Scheme, and which is likely to
take 30 or 40 years to materialise already obtains in Anglo-Indian
schools. In asking for the retention of a clause similar to the provision
in the Government of India Act, we wish certain aspects to be em¬
phasized. While Government grants to other communities have
steadily increased by about 29 per cent, since 1926-27, Government
grants to Anglo-Indian schools have not only not increased at all but
decreased. The provision in the Government of India Act which set
out a minimum has, in practice, been interpreted by a majority of the
Provincial Governments as prescribing a statutory maximum. In the
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FRAMING OF INDIA'S CONSTITUTION
result, the Anglo-Indian parent, as mentioned above, bears SO per
cent of the cost of education of the child. Comparatively, the Anglo-
Indian parent bears a burden for the education of bis child such as
that not borne by parents erf children erf other communities. It is very
necessary that the future Governments should consider these aspects
and that the grants should be so increased to these schools as to lift
an increasingly intolerable burden from the shoulders erf Anglo-Indian
parents.
Finally, I wish to reiterate that the mother-tongue of the community is
English, and, because erf this, is as much an Indian language as the mother-
tongue of any other Indian community. I appreciate the fact that national
self-respect will require that increasing importance be given to the main
Indian languages. Our schools have recognised the need for die mastery of
one of the main languages but the principle of cultural autonomy gives us
the right to expect the continuance of English as the medium of instruction
in our schools. We would also draw attention to the unnecessary hardship
that will be caused to minorities, whose mother-tongue is not Hindi or Urdu,
by precipitate measures as to the language media.
• • *
The Services
We appreciate the fact that the ideal condition would be to do away with
all communal considerations for the purposes of recruitment to the services.
But under present communal conditions, this must remain, at least for some
time, unattainable. The present principle, to use the words of Appadorai
must be that “efficiency of the public services depends not merely upon the
qualifications erf the entrants thereto but upon the social harmony in the
body politic served by them”. In order to maintain the social harmony we
feel that communal representation is essential, subject erf course to salutary
safeguards which require adequate qualifications. Under this section we would
ask for a special clause in the Constitution safeguarding our percentages of
employment in the Railways, Posts and Telegraphs, and Customs Services.
This clause can be based on section 2S2 of the Government erf India Act,
1935, by which the class and character of the posts, hitherto held by
members of the Anglo-Indian community, are safeguarded. We ask for
this clause in the Constitution for the following reasons :
(a) The community has, as already mentioned, helped largely in the
founding and developing erf these important services.
(b) It is unfair to calculate these percentages on a flat numerical ratio.
The community is cent per cent literate. Further, the whole community
studies up to at feast the Middle School stage. This is certainly not
the case with practically all the other communities. Finally, over a
period of many decades, the community has developed special aptitudes
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NOTES AND MEMORANDA ON MINORITIES
347
for these services. On the basis, therefore, of the number of persons
qualified and willing to enter these services, our percentages are not
only not disproportionate but perhaps comparatively low.
(c) The economy of the community has. as the result of circumstances
beyond its control, been based almost entirely on Government ser¬
vice. A sudden and violent dislocation by depriving the community
abruptly of these three major avenues, would be to deal it an
economic death-blow. This we feel could never be the deliberate
intention of any section of our fellow countrymen towards us. If
necessary, this safeguard clause can be made operative for a limit¬
ed period of 30 years, so as to give the community an opportunity
to divert itself into other avenues of employment.
(d) The total number of posts held by the community in these three
departments, approximates to 17,000. This represents a microscopic
proportion of the hundreds of thousands of other Government’s
posts left untouched by the community.
0*) Reply to the Questionnaire received from S. H. Prater
March/April 1947
1. What should be the nature and scope of the safeguards for minorities in
the new Constitution ?
The question may be answered by first considering the nature and scope
of the safeguards provided for the community and for other minorities in
the Government of India Act of 193S. These safeguards are based on
knowledge of the community’s need. The experience gained from their
working during the past decade helps to indicate the nature and scope of
the safeguards for the community in the new Constitution.
Existing safeguards far the Anglo-Indian community
The protection given to the community in or by the terms of the Gov¬
ernment of India Act falls into two categories—
(a) General safeguards provided for all minorities;
(b) Safeguards particular or special to the community.
These safeguards may be considered in their application to the Centre and
to the Province.
Safeguards in the Centre
1. General safeguards: Safeguarding of the ‘legitimate interests’ of the
minorities is made one of the “special responsibilities” of the Governor-
General. [Sec. 12(c)]. The ‘legitimate interests’ which the Governor-
General is called upon to safeguard are not specified in the Act. The
general intention was to secure some means by which the minorities can
be reasonably assured of fair treatment at the hands of the majority. For
this purpose the term ‘legitimate interests’ was considered a suitable for¬
mula (Report on Constitutional Reform—Paras 79 and 168). Nor is the
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FRAMING OF INDIA’S CONSTITUTION
term ‘minority’ legally defined in the Act. It was not however intended
to extend protection to ‘political minorities’ (Parliamentary Debates Vol.
292. cols. 1815-1816).
The Governor-General is required to safeguard the interests of certain
minorities, among them “those racial or religious communities for which
special representation is accorded in the Federal Legislature” (Instrument
of Instructions to Governor-General, para XI).
The powers vested in the Governor-General for the discharge of his
“Special Responsibilities” though extensive both in their scope and in the
circumstances in which they could be brought into play are discretionary and
to be used, in the terminology of the Act, “in the exercise of his individual
judgment.” In the exercise of these powers he is ordinarily to be guided
by the advice of his Ministers unless in his individual judgment so to be
guided would be inconsistent with the fulfilment of any of the ‘Special
Responsibilities’ which are by the Act committed to him.
2. Reservation of seats in the Upper and Lower Chambers of the Federal
Assemblies: Council of State: The community is given representa¬
tion (First Schedule, para. 3) and allocated one seat (Table of seats. Div. I).
Person to fill this seat is to be chosen by such Anglo-Indians as are
members of an electoral college, consisting of such Anglo-Indians as are
members of the Legislative Council of any Governor’s Province or of the
Legislative Assembly erf any Governor’s Province. (Schedule I, Part I,
para 10).
A person shall not be entitled to hold a seat unless he possesses such qua¬
lifications as may be prescribed (ibid, para 11).
The Anglo-Indian representative chosen upon the first constitution of
the Council of State is to be chosen to serve for 9 years, (ibid, para 15).
Federal Assembly: The community is given representation in the Fede¬
ral Assembly (ibid, para 18) and allocated 4 seats to be filled by one
representative each from the Governor’s Provinces of Madras, Bombay,
Bengal and the U.P. (Table of seats. Federal Assembly Div. 7).
Indirect election through an electoral college as prescribed for the elec¬
tion of the Anglo-Indian representative in the Council of State is to be
adopted for the election of persons to represent the community in the
Federal Assembly (ibid, para 22).
A person shall not be qualified to hold an Anglo-Indian seat in the
Federal Assembly unless he is qualified to hold a seat of the same class
in the Legislative Assembly erf a Governor’s Province, (ibid, para 25).
The term ‘Anglo-Indian’ is defined as “a person whose father or any of
whose male progenitors in the male line is or was of European descent but
who is a native of India.” [Schedule I, para 26(1)].
The expression “Native erf India” has the same meaning as it had for the
purpose of section 6 erf the Government of India Act of 1870 and accord¬
ingly includes “any person born and domiciled within the Dominion erf His
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349
Majesty in India or Burma erf parents habitually resident in India or Burma
and not established there for temporary purposes only”, (ibid, para 26(2)).
3. Special Economic Safeguards: The Instrument of Instructions to the
Governor-General specifies that the “legitimate interests of the minorities
include their due representation in the services.”
Apart from protection so afforded to minorities in general, a special clause
is introduced into the Government erf India Act, 1935, to ensure recruit¬
ment of the Anglo-Indians in the Railways, Posts and Telegraphs and Customs.
Section 242(2) directs that in framing rules for the regulation of recruit¬
ment to the superior Railway posts and to recruitment generally, due
regard shall be paid to the past associations of the community with the
Railway Services in India and particularly to the specific class, character and
numerical percentage of posts hitherto held by members of the community.
Section 242(3) makes a similar provision in relation to recruitment to
the Posts & Telegraphs and Customs.
These clauses have been given effect to by a resolution of the Home
Department of the Government of India, dated July 4, 1934, announcing
new rules for the determination and improvement of the representation
erf the minorities in die public services. It is incumbent on the Governor-
General in the discharge of his “special responsibility” for the legitimate
interests of the minorities to see that no change was made in the percentages
of appointments prescribed for the various minorities without their approval.
(Report on Indian Constitutional Reform Vo], I, Part 1, para 321).
Safeguards in the Provinces
1. General safeguards: The safeguarding of the legitimate interest of the
minorities is made the “special responsibility” of the Governor of the Pro¬
vince (section 52). The manner in which the Governor is to intervene and
exercise his powers in relation to his “special responsibilities” is set out
in the Instrument of Instructions which is similar to that issued to the
Governor-General except that in using the discretionary powers, or exer¬
cising his individual judgment in the discharge of his special responsibility,
the Governor is responsible immediately to the Governor-General.
2. Reservation of seats for Anglo-Indians and other Minorities in the
Provincial Assemblies: Legislative Assemblies: The allocation of seats in
the Provincial Legislative Assemblies to specific minorities is shown in the
relevant Table of Seats appended to the Fifth Schedule. The number of
seats allocated to the community is as follows (Table of Seats Division 8).
Madras 2
Bombay 2
Bengal 3 plus 1 seat for women
U.P. 1
Punjab 1
Bihar 1
CP. 1
Through separate electorates (ibid, para 4).
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No person shall be included in the electoral roll from an Anglo-Indian
constituency unless he is an Anglo-Indian (Sixth Schedule, para 5). An
Order in Council may direct that any Anglo-Indian constituency may be
deemed to be an urban constituency for some purposes and a rural consti¬
tuency for other purposes [ibid, para 13(2)].
3. Special safeguard for Anglo-Indian Education: Besides die general
safeguard secured to minorities by reason of the “special responsibilities”
of the Provincial Governors, a special safeguard is provided to ensure that
adequate educational grants shall be made by Provincial Governments for
the benefit of the Anglo-Indian community [sec. 83(1)].
If a resolution is passed by the requisite majority of three-fourths of a
Provincial Assembly and the Governor does not deem it necessary to
intervene in the exercise of his special responsibility, the safeguard imposed
by s. 83(1) may be removed entirely [s. 83(2)].
These provisions indicate the nature and scope of the safeguards provid¬
ed for the Anglo-Indian community in the existing constitution.
2. What should be the Political safeguards of a minority (a) in the Centre,
(b) in the Provinces?
Political safeguards in the Centre
The nature and scope of the political and other safeguards for the
minorities in the new Constitution will be conditioned by the nature of the
settlement of the major constitutional problem—the unity of India or its
division into separate independent sovereign States. The Muslim claim
for the establishment of a separate State or States is conceded by His
Majesty’s Government’s decision to transfer power to such States or Pro¬
vinces as do not wish to enter the Union.
If power is vested in more than one successor Government political and
other safeguards for the minorities will be governed almost certainly by
reciprocal provisions for their protection in the Union and in the indepen¬
dent Muslim States. It is apparent that such reciprocal treatment will be
forced upon the several Governments as the minority element in one terri¬
tory would stand in the position of ‘hostages’ to the security of the minority
element in another. Under these conditions, matters such as representa¬
tion in the Cabinets, weightage, reservation of seats in the legislatures,
method of election through joint or separate electorates, all those political
safeguards provided to secure effective representation of the minorities
would be materially influenced by the anxiety of Governments for the
security and well-being of Hindu or Muslim minorities in the territories
outside their control. These reciprocal adjustments on behalf of the
Hindu and Muslim minorities will equally influence economic, educational
and other safeguards provided for the protection of minority elements.
In such adjustments of the rival claims of the two major elements of the
population—Hindu and Muslim—the smaller minorities are likely to be
overlooked. Provisions for their protection—political, economic or
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NOTES AND MEMORANDA ON MINORITIES
351
otherwise, would become subordinate to the need for concessions to these
powerful elements.
Smaller minorities such as the Indian Christians and the Anglo-Indians
would be placed at an increased disadvantage. Their reduction to yet
smaller units living in separately governed and administered territories
would further reduce and weaken their political influence. Their position
would be hazardous in the extreme unless their needs were especially
considered in any political agreements entered into between the successor
Governments.
The need for special consideration of their position would persist even
in the event of the establishment of a Union Government for the whole of
India as envisaged in the Cabinet Mission’s plan. Without power and
political influence they would be unable to protect themselves or even
voice their claims unless due weightage and representation was given to
them in the Government and Legislatures. The following political safe¬
guards are requisite for their protection.
1. Representation in the Cabinet: Provision should be made in the new
Constitution for the representation in the Cabinet of the small minorities
which are accorded representation in the Legislatures. The need for such
representation is recognised in the existing constitution wherein the
Governor-General in discharging his special responsibility for the protection
of the minorities is instructed as far as possible to include in his Council
of Ministers representatives of the more important minorities (Instrument
of Instructions to Governor-General). Conditions which give rise to this
recommendation have not altered. There is need for associating the minori¬
ties with legislative and administrative measures proposed by the Executive
which may materially affect their interests. The inclusion of
minority representatives in the Ministries was widely supported by Indian
opinion previous to the passing of the Government of India Act. It is
still so supported.
2. Reservation erf seats for minorities in the Central Legislature or
Legislatures if bicameral legislatures are established.
In the existing constitution the Anglo-Indian community is allocated one
seat in the Council of State and four seats in the Federal Assembly.
Representation in the Union Assembly is based mainly cm representa¬
tion of the various federating Provinces as at present existing or as may be
subsequently demarcated. In the instance erf the Anglo-Indian community
one seat may be provided for each Province in which the community is
given representation in the Provincial Legislature.
Political safeguards in the Provinces
1. Provision should be made for giving the smaller minorities represen¬
tation in the Ministry. It is a matter of practical importance for the
success of the new Constitution that minority interests should be adequately
recognized in the formation of the Provincial Executives.
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2. Reservation of seats in the Provincial Legislatures: Under the 1935
Act, 12 seats are reserved for the Anglo-Indian community in the Provin¬
cial Legislatures as indicated in chapter I. These reservations should be
maintained or increased when necessary. Provision should be made to
secure representation of the community in all Provinces. Weightage is
especially important to the smaller minorities whose interests are likely
to be disregarded and overwhelmed by the political power and influence
of the major elements of the population.
3. Method of Election: The grant of separate electorates to large and
powerful minorities—a concession which might be imposed as a result of
reciprocal arrangements between the Union and the independent States—
would place the smaller minorities in a position erf increased disadvantage.
Their influence in the general electorate would be rendered still more negli¬
gible. The exclusion from the electorate of the largest or most powerful
minority element would give the predominant community complete control
and sway over the elections. For this it is urged that if the concession
of a separate electorate is made to one minority it should be made to all
minorities. There can be no justification for denying such protection to
smaller minorities which have not the political power or influence to insist
upon the grant of separate electorates. Admittedly the system ot separate
electorates tends to create within the State a group of inhabitants who
regard themselves permanently ‘foreign’ to the general organization of
the country. It isolates communities and sets up privileged ‘castes’ which
become a disruptive element and a source of national disorganization.
Representation effected through communal electorate results in the crea¬
tion of a permanent communal majority in the Government and Legisla¬
tures and prevents growth of political parties divided on broad issues of
policy—a factor so essential to the successful working of Parliamentary
Government. Joint electorates are admittedly the best system of effect¬
ing representation in the Legislature. But the question is whether it is
expedient to introduce the joint system at the present stage. The na¬
tionalisation which we all desire must be approached in a spirit of realism.
The new Constitution which we propose to set up requires for its success¬
ful working the active interest and co-operation of all elements of the
population. The minority elements are today living under a sense of
uncertainty and insecurity. Machinery must be set up to create that confidence
and trust which alone can engender the unity we desire and which is so
essential to the successful working of the new Constitution. If however the
separatist influence of the system of separate electorate outweighs these
considerations and joint electorates are introduced it would be necessary
to provide means to ensure that the minorities are represented in the Legis¬
lature by candidates of their own choice. Ways and means would be con¬
sidered to give effect to this very essential purpose; either by a system of
preliminary elections through communal electorates or such other device
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NOTES AND MEMORANDA ON MINORITIES
353
as would ensure the election of representatives holding the confidence of
the minority.
If separate electorates are maintained or pre-elections are introduced a
precise definition of the term Anglo-Indian would be required in order
to confine the electoral roll to members of the community. The existing
definition incorporated in Schedule 1 of the Act of 1935 or any such
modification of the definition as the community desires should be incorporated
in an appropriate section of the Constitution and made statutory appli¬
cable not only to the electoral rolls but to all such safeguards as may be
provided for the community.
3. What should be the economic safeguards (a) in the Centre, (i) in the
Provinces?
1. Economic safeguards in the Centre: The Central Services will be
concerned with matters under the direct control of the Central Govern¬
ment. Apart from the Central Secretariat, the most important of these
services are the Railways. Posts. Telegraphs and Customs. The Anglo-
Indian community has always furnished a large number of recruits to these
services and has established a strong claim to the maintenance of its
position in them both by its history and its fine record of loyal and
efficient service. The Services Sub-Committee of the First Round Table
Conference recommended that special consideration should be given to the
claims of the community for employment in the Central Services. The
Government of India equally recognized this special claim in their resolu¬
tion dated 4th July, 1934, in which they announced new rules for the recruit¬
ment of the minorities in the Central Services and fixed the percentages of
appointment for various communities. The percentages of posts so reserved
for the Anglo-Indian community were in direct relation to the number and
cadres of appointments held by Anglo-Indians.
The Joint Parliamentary Committee in its report on Constitutional
Reform recommended that a reference should be included in the Instru¬
ment of Instructions to the Governor-General, that responsibility for the
protection of the minorities should include their due representation in the
Public Services. It further recommended that the Governor-General should
endeavour to ensure that the percentage of posts allotted to the various
minorities under the terms of the Government of India resolution was not
interfered with without their approval (Report on Constitutional Reform,
para 321).
Apart from the general safeguard for all minorities in the Public
Services provided in the Instrument of Instructions to the Governor-General,
the necessity for ensuring the adequate employment of Anglo-Indians in
the Services was recognized by a special statutory provision in the Gov¬
ernment of India Act the objective of which was to ensure continued
employment for the community and to prevent disruption of its whole
economic fabric. It was recognized that such a provision, endorsed by
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law was vital to the very existence of the community in India.
Today the community continues largely dependent for its livelihood on
employment in these Services. The report of a committee set up by the
Provincial Board of Education, Bombay reveals that out of 1000 Anglo-
Indian parents earning incomes below Rs. 6,000 per annum 750 were
employed in the subordinate cadres of the public services, earning average
incomes of Rs. 150—Rs. 200 per mensem.
The community is entirely an urban community depending on urban
forms of occupation. The Government of India was and continues to be
the largest employer of such labour in the country. In the tardy deve¬
lopment of Indian industries Government service remains for the mass of
the community the main means of securing employment at a wage more
or less adequate for the maintenance of its standards of life; in private
employment competition has kept the wages of labour below an economic
level. There is today a marked tendency on the part of the community
to seek avenues of employment other than Government Service and with
the greater employment erf industries in India and the general rise in
standard of living wider opportunities of employment will become avail¬
able to Anglo-Indians. But in the nature of things this must be a gradual
process and it is essential that for some time statutory provision must
continue to be made to ensure that the “specific class, character and numerical
percentage” of posts hitherto held by members of the community in the
Railways, Posts, Telegraphs and Customs are maintained. Section 242
(2) & (3) of the Government of India Act provides an index to the nature of
this provision,
2. Economic safeguards in the Provinces: The Instrument of Instructions
to the Governors of Provinces specifies that the “legitimate interests of
the minorities includes their due representation in the Provincial Services.”
The Government of India Resolution of 4th July, 1934 governing
recruitment to the Central Services expresses the view that Provincial Gov¬
ernments should consider the framing of parallel rules to determine and
improve the representation of the minorities in these services.
Little has been done to implement these intentions and the smaller
minorities have been steadily squeezed out of the Provincial Services by
the preponderant claims of more powerful elements. While it is appre¬
ciated that efficiency is the first requisite for public service there is equally
the need for associating all sections of the people with these services which
under the unfortunate conditions which obtain have tended to become more
and more the preserves erf the dominant element of the population.
4. What should be the religious, educational and cultural safeguards for
a minority ?
Religious safeguards: The guarantee of religious toleration is more than
an elementary right secured in every civilized State. It should be part
of the fundamental law of the country and should not be over-ridden by
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NOTES AND MEMORANDA ON MINORITIES
355
any law, decree or administrative Act. The free exercise in public and
private of any religion whose practices are not inconsistent with public
order and public morals must be assured by law to all inhabitants of
India without distinction.
Language safeguards: The right of a minority to education in its mother-
tongue is fundamental. It is a right especially recognized in the Minority
Treaties signed by various European States. It is however stipulated in
these treaties that the right does not prevent the making of the teaching
of the ‘majority’ language obligatory in minority schools.
Facilities for the use of the minority language in the law courts are
equally obligatory. Under the laws dealing with the administration of
justice, pleading might be made and evidence given in a minority langu¬
age, provided the other party and the jury understand the language. Other¬
wise an interpreter must be provided.
In the Administrative Services the official language is used but provi¬
sion is made that written petitions in minority languages must be accepted
by the local authorities and replies must be given both in official and
minority languages. The same principle is applied to the conduct of local
Assemblies.
These provisions adopted for safeguarding the language of a minority
help to indicate what should be done to provide similar protection in
India.
The Anglo-Indian community claims the right to instruction in English
which is its mother-tongue and equally insists that the teaching of such
Indian languages as the State may prescribe, be made obligatory in its
schools throughout the primary and secondary stages of education. It is
however essential that time should be given to the community to acquire
proficiency in Indian languages in the primary and secondary stages of
education. The policy of provincial authorities to make Indian languages
the media of instruction and immediately to introduce entrance examina¬
tion in Indian languages to universities, would place an embargo on the
entrance of Anglo-Indians into the colleges and would shut the door of
higher education.
In these circumstances, and in fairness to the community, it should be
expressly stipulated that in the absence of opportunities for higher educa¬
tion in English, facilities for such education should be provided provisionally
by the State for the community.
While the community claims the retention of the essential characteristics
of Anglo-Indian education, it is growingly coocious that its own conser¬
vation in the India of the future depends largely upon suitable reforms
in the existing system of education, which in placing its emphasis on
Western ideals and Western sympathies tended to isolate the community
and to engender an indifference to Indian culture. The community
desires that Anglo-Indian education should be brought into ali gnmen t
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with the scheme of national education, that it should be given a new
orientation so as to ensure that the children of the co mmuni ty will deve¬
lop a proper appreciation of all that is valuable in the culture of the
country, and leave school imbued with the desire and capacity to parti¬
cipate fully in all aspects and departments of Indian national life, identi¬
fying their welfare with that of the country.
Facilities for the use of minority languages should be made available
in courts, administrative offices, local Assemblies and their use permitted
by law.
The distinctions in languages and culture exhibited by various minori¬
ties can only disappear gradually in the course of generations of mutual
toleration. Attempts to hasten the process by force, to carry out a super¬
ficial assimilation of language and culture erf the minorities to those of
the majority defeat their own ends and lead to disruption.
State aid for minority schools: The right of a minority to use its own
language is fundamental, but educational safeguards for minorities accepted
by various European Governments go further. The responsibility for
providing grants for the maintenance of minority schools is accepted and
such obligation is not limited to primary schools. Under treaty stipula¬
tions minorities are also assured of an equitable share in public funds
allotted to educational, religious and charitable purposes (Article 9, Poland).
Funds allowed to a particular community (Jews) under article 9 are to be
administered by a local education committee appointed by the community
(Article 10, Poland). Treaties drawn up on similar lines as the Polish Treaty
were signed by eight European States.
To ensure the continuance of adequate State aid to Anglo-Indian schools,
a statutory provision was introduced in the Government of India Act
whereby it was made obligatory in Provincial Governments to make annual
educational grants for the benefit of the Anglo-Indian community. Sec¬
tion 83 of the Act directs that the annual grant be “not less in amount
than the average of the grants made for its benefit in the ten financial years
ending on the 31st March 1933.”
This assessment bears little or no relation to present-day expenditure
in Anglo-Indian schools. In common with other schools the costs of
maintenance has substantially increased during the past decade. Total
expenditure in the schools has arisen by 50 per cent and more in many
Provinces. Failing additional State aid the substantial increase in expendi¬
ture has been met exclusively by increasing fees to a scale out of all
proportion to the earning capacity of the average Anglo-Indian
parent.
Further, while section 83 provides for a reduction in the grants of Anglo-
Indian education pro rata to any reduction in the total grant to education
made by a Provincial Government it does not make a corresponding provi¬
sion for a pro rata increase to meet heavy increase in expenditure.
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NOTBS AND MEMORANDA ON MINORITIES
357
In the application of the statute by the majority of Provincial Govern¬
ments which was meant to be a statutory minimum grant has tended to
become a statutory maximum grant.
In these stringent conditions free and compulsory primary education—a
responsibility which the State proposes increasingly to accept for all com¬
munities in India—is denied to the Anglo-Indian community even to its
poorest element. The dependence of Anglo-Indian schools upon fees makes
such provision impossible.
It is generally urgued that as the per capita expenditure by the State on
Anglo-Indian education is higher than that prevailing for other communities
no further increase in the grant is justifiable.
A plea is here made for a considerate appreciation of the whole question.
Despite its Western culture and ways of life, the Anglo-Indian community
is no less than other communities, an Indian community, rooted in Indian
soil. A higher expenditure by the State on Anglo-Indian education does
not arise from privileged treatment. It arises from a just appreciation erf the
peculiar economic conditions of the community—conditions for which it
is not to blame, but which as shown, are bound up with its history, origin
and descent.
As distinct from most Indian communities, whose traditional and general
standard of life are Eastern, and whose economy and means erf livelihood
are predominantly rural—the Anglo-Indian community is a community
with Western standards of living. It is distinctive again in this that it is
a community of landless wage-earners, concentrated in large towns and
cities, which maintains itself exclusively by urban forms of occupation.
These factors inescapably impose a higher expenditure on the maintenance
of Anglo-Indian schools. A higher cost of living implicit in the community’s
standards of life and urban residence impels a higher standard of salaries
to teachers. The necessary concentration of the community’s schools in
large towns and cities involves high standard in buildings and equipment
and a high cost of maintenance. It also necessitates the provision of a
large number of boarding schools for children living in the mofussil where
no suitable schools are available. The orphans and destitute of the com¬
munity have equally to be cared for and educated in such establishments.
This is a contingency applicable to urban labour the world over and
peculiarly applicable to the Anglo-Indian community differentiated from
other Indian communities by its exclusively urban wage-earning economy.
These factors inherent in and inseparable from the conditions under which
the community maintains its life and being, increase the cost of its educa¬
tion and consequently the per capita expenditure by the State. While the
cost of its education is higher, the community bears a greater proportion
of that cost than any other community in India. In 1944-45, 49 per cent of
the cost of Anglo-Indian education was met by fees, 27 per cent from private
sources and 24 per cent by Provincial Governments.
24
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FRAMING OF INDIA’S CONSTITUTION
The Anglo-Indian community places the greatest importance upon a
specific clause being introduced into the new Constitution whereby educa¬
tional grants for the benefit of the community shall continue to remain a
statutory obligation on Provincial Governments.
It has however been shown that the basis in which die grants are assessed
under the terms of the section require amendment. Experience of the actual
working of the section indicates the need for ensuring that the educational
grants made for the benefit of the community are adequate to meet existing
costs of maintenance of the schools and to provide for such reforms and
development in education as are provided by die State for the benefit of
all communities.
It is claimed that a provirion should be included in the new Constitution
similar to section 83 of the Government of India Act of 1935 with the
modifications indicated below in paras 2, 3 and 4:
(1) that the annual educational grant made by Provincial Governments
for the benefit of the Anglo-Indian community shall not be less in
amount than the average of the annual grants made for its benefit
by the Governments concerned in the ten financial years ending on
the 31st day of March 1933.
(2) that this sum should be increased (a) pro rata to any increase in
the total annual grants for education in the Province over the average
of the grants paid for the benefit of the community in the same
triennium, or (/>) increased in proportion to the total expenditure
of the Anglo-Indian schools in the Province in excess of the average
expenditure on such schools in the Province in the triennium—
whichever is the lower.
(3) that all grants paid by Provincial Governments by virtue erf this
stipulation in the Constitution shall be paid for the exclusive benefit
of the children erf the Anglo-Indian community. Section 83 of the
Act lays down that a “grant is to be paid for the benefit of the
Anglo-Indian and European communities.”
(4) a clear definition of the term “Anglo-Indian” must be included in
order to ensure that the grants made to the community are in fact
utilised for the community. This definition of an Anglo-Indian must
be included in the statutory provision and, by statute, repeated in
all Provincial codes.
The grant is not, in fact, paid to the communities, but to certain institu¬
tions in the manner prescribed in “The Code of Regulations for European
Schools” in the Provinces concerned.
The codes do not define the term ‘Anglo-Indian’. In such codes the
schools are described as ‘European’ schools and the term ‘European’ includes
Anglo-Indians, i.e., people of pure and mixed European descent who are
natives of India, Europeans who are not domiciled in India and also
peoples of various Asiatic countries, Armenians, Jews, etc., who are not
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NOTES AND MEMORANDA ON MINORITIES
359
regarded as ‘Indians’, wbo customarily use these schools. The schools
are also used by a number of children of various Indian communities. The
Barnes report indicates that 30 per cent of pupils in the schools are Indian.
No cl aim is made by the community that its schools should be reserved
exclusively for Anglo-Indians. On the contrary it welcomes co-education
with children of other Indian communities.
* * *
5. What machinery should be set up to ensure that the safeguards for
minorities are effective?
The answer to this question depends upon the settlement of the major
constitutional issues upon the establishment of a Union Government for
the whole of India or upon its division into independent sovereign States.
Machinery for protection of minorities in independent States: The
principle of self-determination under which new frontiers may be drawn up
and independent States created will provide no real solution of the minorities
problem. It will leave large discontented minority groups on the wrong
side of these borders. If these independent States are so created it is a
matter for consideration whether the protection of the minorities should be
left to the discretion of these several independent Governments or whether,
previous to the transfer of power to these States, by multi-partite treaties
placed under the guarantee of an international organisation such as U.N.O.,
charged with supervising the proper execution of the terms of these treaties.
An attempt was made in the existing constitution to set up an impartial
supervising authority for the protection of the minorities. The Crown in
the exercise of its executive authority vested its representatives—the
Governor-General, and the Governors of Provinces with special powers
endorsed by laws to safeguard the interests of the minorities. These powers
were however discretionary and to be exercised in accordance with the
individual judgment of these authorities. In practice such machinery for
the protection of the minorities proved wholly ineffective. Powers intended
for this protection were never used as Governors of Provinces were disinclin¬
ed to accept the responsibility for developments resulting from the exercise
of these powers.
Treaties for the protection of minorities placed under international
guarantees are however intended to be worked and have been worked
effectively to secure their objectives.
The treatment of minorities under ‘alien’ rule is being made more and
more the subject of international guarantees. Acceptance by a State of this
procedure of minority protection implies a voluntary limitation of its
sovereignty in these particular matters. But the assumption of such obli¬
gation in the words of Sir Austen Chamberlain was “no humiliating surrender.
It was a free and helpful contribution to the policy of international
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FRAMING OF INDIA’S CONSTITUTION
co-operation; it was a contribution no less free and no more derogatory than
the contribution which any great power has made to such questions as
disarmament or arbitration ; it was a contribution no more unwilling, no less
honourable, than every signatory of the covenant made when they signed
the covenant.”
To the Indian people exultant in their new-formed independence, these
limitations of sovereignty may seem repugnant, but in the tragic circum¬
stances which obtain and in the acute communal antagonism which prevails,
reciprocal agreements between independent Governments, or mere reciprocal
adjustments and written safeguards would be of little avail if a policy of
repression open or veiled was embarked upon and there is today ample
evidence of these tendencies in certain Provinces. Effective machinery for
the protection of the minorities under conditions which exist can be secured
by treaties placed under international guarantee. Security for the minorities,
so made effective, would remove a fruitful source of trouble and friction
between these States and make for greater harmony and peace between them.
Provisions for the protection of the minorities under international
guarantee are extended to include firstly the establishment within the area
concerned of regional machinery invested with considerable freedom of
action and secondly the grant to persons belonging to the minorities of the
right of direct access to this regional machinery. Thirdly, supplementing
this regional machinery, provision is made for recourse to international
authority.
The main objective of regional machinery set up within the territory of
a State is to obviate the necessity for appeal to outside authority: “Mino¬
rities Offices” are set up in the territory of the State to which persons who
complain of an infraction of their rights must apply. They must also file
their complaint with the competent administrative authority of the areas.
If the question cannot be settled by the minorities office it must be sent
by the office to a mixed commission composed of two minority representa¬
tives, two majority representatives with a neutral chairman appointed by
the international organization. Questions of interpretation go to an Arbitral
Tribunal composed in the same way.
An appeal to the international organization is allowed only as the last
resort and must be sent through the Minorities Office. Petitions may also be
sent direct to the international authority.
Finally, disputes between States, who are members of the international
organization, regarding the interpretation of provisions for minority pro¬
tection and questions dealing with minority rights may be referred to the
International Court of Justice.
Protection of Minorities in the Union: Should a Union Government be
established for the whole of India as envisaged in the Cabinet Mission’s
plan, the protection of the minorities might be effected by a convention
established between the Union Government and the Federating Provinces
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NOTBS AND MEMORANDA ON MINORITIES
361
and States and placed under international guarantees. In the alternative
Minority Offices, Mixed Commissions and an Arbitral Tribunal with
functions such as already indicated may be set up in required areas. This
regional machinery must be supplemented by right of appeal to the
Supreme Federal Court, direct or through the ‘Minority Offices’.
That regional machinery set up for the protection of minorities has been
effective in fulfilling its purposes is indicated in the reports of independent
authorities which have made a special study of the working of such minority
procedure in Europe. The exact nature, scope and functions of regional
machinery, the beneficial results secured is evidenced in the work on the
Regional Guarantees of Minority Rights by Julius Stone issued by the
Bureau of International Research, Harvard University, in the companion
volume published by the Oxford University Press and in the work The
Protection of the Minorities by Prof. Mair, Assistant in International Studies.
London School of Economics.
(k) Memorandum on Minorities Protection by Jairamdas Daulatram
March/April 1947
Many clauses for the protection of minorities have been suggested by
different members of the Minorities Sub-Committee. The Fundamental
Rights Sub-Committee has also recommended several provisions which
protect the rights and interests of minorities. I do not want to cover the
above ground. I want to confine myself to a few special provisions.
1. The Supreme Court of the Union shall as soon as may be after the
constitution of such a court nominate for each unit a permanent panel of
judges out of which the Chief Justice of the Supreme Court shall set up
a Minority Protection Court of the unit for adjudicating on any complaint
of unfair or unjust treatment of a minority community. There shall be an
appeal to the Supreme Court against the decisions of the Minority Protection
Court.
2. In accordance with principles to be laid down by a Union law, a
Minority Commission shall be appointed by the Supreme Court to take
all available steps to see that the Hindu and Muslim minorities in the
different units of the Union are given just and fair treatment in the political,
economic and cultural spheres of life.
3. It shall be the duty of the Union to see that full and complete protec¬
tion of life and liberty is available to all minorities living within the units.
(Treaty with Turkey).
4. It shall be the duty of the Union Legislature and Executive to see that
the rights and interests of the Hindu and Muslim minorities in the various
units of the Union shall be safeguarded in law and in fact in accordance
with identical principles. (Finland) (Turkey Act 40).
5. The units shall provide for the cultural and economic needs of the
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Hindu and Muslim minorities in accordance with identical principles.
(Finland).
6. Any legislative or executive order which in effect tends to discriminate
against the members of a minority community or tends to affect prejudicially
their right to hold or acquire property or follow any trade, calling or
avocation or gives preferential treatment to the members of the majority
community shall be illegal.
7. No Cabinet of a unit shall be held to be validly formed unless it
cxmtains due representation of the Hindu or Muslim minority as the case
may be, unless the minority concerned forgoes the right.
0) Memorandum on Minorities by Ujjal Singh and Harnam Singh
March/April 1947
Introduction
The Sikhs occupy a special position in India. They are six millions
in population, out of whom over four millions live in British India, and
thus on a population basis, they constitute the third largest community in
British India, the other two being Hindus and Muslims. But their political,
historic and economic importance is out of all proportions to their numbers.
The population figures of the Punjab according to the census figures of
1941 are:
Total population.2,84,18,819
Muslims. 1,62,17,242
Sikhs. 37,57,401
Hindus and others. 84,44,176
The total population of the Punjab States according to the census of
1941 is:
Total population. 69,94,198
Muslims 22,98,137
Sikhs. 13,60,424
Hindus and others. 29,45,637
The total population in the Punjab including the States is 51,17,825 Sikhs.
These figures are according to the census of 1941. Mr. M.W.M. Yeats,
Census Commissioner of India reported:
1940-41 saw the political influence on the census. The increase is by no
means uniform, although a greater figure than for the previous decades
is practically universal. Rates are noticeably larger in the north than in
the south and have two distinct peaks in the extreme west and north west
and in the east In fact we have in the Punjab and Eastern Bengal two
swarming areas.
Happily for the Punjab, rationing enumeration under the Defence of
India Rules was carried out in principal cities of the Punjab in 1942. The
rationing enumeration has disclosed that at the census of 1941, Muslim
figures were swollen to curtail the comparative numerical strength of the
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NOTES AND MEMORANDA ON MINORITIES
363
other communities of the Punjab. The population in the city of Amritsar
in the census of 1941 is as under:
Muslims.
184,696
Sikhs.
58,610
Others.
143,286
The figures for the three communities in the
rationing enumeration of
1942 are :
Muslims.
177,563
Sikhs.
63,236
Hindus.
143,471
The Sikhs in the rationing enumeration are 4,626 more than that shown
in the census of 1941 whereas the Muslims are 7,133 less than they were
returned in the census of 1941. This process has been repeated all over
the Punjab.
Since the annexation of the Punjab with British India, the Sikhs have
played a most noteworthy part in the making of the Punjab of to-day, and
have made contributions towards the defence of India, and towards its
economic and political life, which are out of all relationship with their small
numerical strength but which are in keeping with their historic role in the
political and cultural life of India.
4. The Punjab has been described as the province of peasant proprietors.
Sir Edward Maclagan late Governor of the Punjab in the foreword to the
‘Punjab Peasant’ by Darling writes : “The Punjab peasant is one of the
noblest and finest of his kind”. On page 136 of this book the author
writes : “No colony could have had better material for, Ludhiana, Jullun-
dur, and Amritsar represent the flower of Indian agriculture. They are
the home of the Jat Sikhs who have been described as the most desirable
of colonists.”
Professor Coupland on page 84 of the Future of India says :
The Sikhs form 15 per cent of the aggregate population of the province
and the States and there is not a single district in which the Sikhs are
in a clear majority. But the traditional qualities of the typical Sikh, the
sturdy, free-minded peasant proprietor of the Central Punjab, where he
owns most of best land, his energy, and toughness and courage and the
great contribution, has long made and is still making to the strength and
renown of the Indian Army give to the community an importance in the
Punjab out of all proportions to its numbers.
Mr. Robert Needham Cust, I.C.S., Secretary to the Royal Asiatic Society
writing in 1859 described the rich tract which lies between the river Chenab
and Beas as the original Sikh land, the cradle of the faith and the nursery
of the chivalry of the followers of the Gurus. The state of affairs that
existed in 1859 continues till today as detailed hereunder.
The Lahore district has an area of 2595 sq. miles and a total population
of 16,95,375. The city of Lahore has a population of 671,650 according
to the census of 1941. The Muslim population in Lahore district is
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60.6 per cent of the total whereas the Sikhs form 18 per cent. The land
revenue of the district is Rs. 14,19,455 as estimated in 1931. The various
communities pay land revenue in Lahore district as under :
Sikhs. 841,921
Muslims. 483,448
Hindus. 109,745
Others. 3,341
Again the Muslims in Gurdaspur district pay Rs. 616,193 on account of
land revenue. The Sikhs pay Rs. 696,801, die Hindus Rs. 457,046 and
others Rs. 7,522.
The total land revenue of Sheikhupura district is Rs. 21,95,047. Out
of this,
Muslims contribute. 10.44,905
Sikhs contribute.9,15,292
Hindus and others contribute .... 2,34,850
Then again taking the Lahore division as a whole, the Muslim holding?
come to about 40 per cent of the total as against 45 per cent possessed and
owned by the Sikhs and 15 per cent by Hindus and others. In Lahore
division, the Muslims compare very unfavourably with the Hindus and the
Sikhs if we further take into consideration the educational, industrial and
commercial life. As regards the ownership of urban property in Lahore
division it may be stated without any fear of contradiction that the Hindus
and Sikhs between themselves own about 30 per cent of the urban
immovable property.
5. In the matter of the defence of the country, the services which the
Sikhs have rendered are even more remarkable. The intelligent student
of history knows that the credit of having effectively closed the North-West
mountain passes through which hordes of foreign invaders have come to
India to disturb its cultural and political life, for thousand of years, goes
to the Sikhs. They are rightly described as “the backbone and flower of the
Indian Army”. Although the Sikhs are less than two per cent of the
population of India, their strength in the defence forces was over thirty
per cent in the second half of the nineteenth century and during the last
war it was about fifteen per cent. Even during this war. in spite of the
fact that the Indian Defence Forces have been increased to 25 lakhs, which
is more than 12 times its previous strength, the Sikhs are in the neighbour¬
hood of 10 per cent in the defence forces. The quality of a Sikh as a soldier
and a fighter does not need elaboration.
The Sikhs maintain that the Punjab is and must remain the homeland
and the holy land of the Sikhs. The facts and figures on this point are
so clear and overwhelming that nothing but shea audacity can account for
any claim to the contrary, including the facetious claim that the Punjab is a
Muslim province, or that it comprises one of the homelands of the Muslims.
The Sikhs have more than seven hundred historic Gurdwaras in the Punjab
with rich endowments, and undying memories of their Gurus, saints and
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NOTES AND MEMORANDA ON MINORITIES
365
martyrs attached to them. The Sikhs have set up and are financing over
400 educational institutions, colleges, schools, seminaries and technical estab¬
lishments, thus making a contribution towards the educational progress of
the Province out of all proportions to their numerical strength and far in
excess of any such contribution made by other communities, particularly
the Muslims. The policy of and the atmosphere prevailing in these
institutions, is more liberal and non-communal than that in any similar
institution run by other communities.
In view of these considerations it is difficult to appreciate the Muslim
claim that the Punjab is a Muslim province, particularly so when the non-
Muslims own more than eighty per cent of the urban property and pay
more than eighty per cent of income tax and urban property tax in the
Punjab. An overwhelmingly major proportion of the industrial enterprises,
factories, mills, the insurance companies, film industry and business, shop¬
keeping, trade and commerce is in non-Muslim hands, not so much by
accident but by virtue of their skill, industry and special aptitude. The
cultural life of the Province is primarily created and determined by impulses
emanating from non-Muslim sources.
Such being the position of the three main communities in the whole of
the Province, it needs no argument to prove that the Hindus and the Sikhs
in the Punjab have essential and vital interest which far outweigh the
interest of the Muslim community in the life of the Province as a whole
and particularly in the Ambala, Jullundur and Lahore divisions and the
colony areas. The Government of India Act of 1935 has, however, created
a situation which has reduced the Hindus and Sikhs of the Province to a
state of complete helplessness. What has recently happened in the Western
Punjab has beaten all records of oppression and barbarities committed
on a small minority by a brute majority. Men, women and children have
been murdered in cdd blood and entire villages belonging to non-Muslims
have been set on fire and reduced to ashes and property looted by Muslim
mobs equipped with all sorts of fire arms. All this terrible carnage which
went on for two weeks in an area where non-Muslims were hardly 10 per
cent in population is the direct result of the poisonous propaganda carried
on by Muslim League for the establishment of a Pakistan State. It is
a foretaste of the treatment of minorities under Muslim rule.
Having given the background of the Sikh case, we now proceed to answer
the questionnaire.
1. Nature and scope of the safeguards for a minority in the new Constitution:
The existing safeguards for the various minorities as provided in the
Government of Indin Act are mainly of a political nature i.e., communal
representation in the Legislatures by separate electorates and weightage
provided for certain minorities. The special responsibility of the Governors
and the Governor-General in regard to the safeguards of the legitimate inte¬
rests erf minorities are provided under section 12(lXc) and 52(lXb). Besides,
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guidance is given in the Instrument of Instructions to Governors and the
Governor-General. Section 298 of the Government erf India Act, 1935,
provides safeguards against discrimination in regard to acquiring, holding
or disposing of property or carrying on occupation, trade, business or
profession. Section 83 and section 242 provide educational safeguards and
the position of Anglo-Indians in certain services. Such political safeguards
will have to be provided in the future Constitution as well. Fundamental
rights of the citizens will cover rights of every individual and will conse¬
quently provide some erf the safeguards for the members of the minorities
as well. In addition to these, the minorities require safeguards for the
protection of their religion, language, and culture as well as for social and
economic rights. All these safeguards shall be incorporated in the Consti¬
tution and shall not be repeated, altered, varied or amended without the
consent of the representatives of the minorities affected.
2. Political safeguards (a) in the Centre, ( b ) in the Provinces
(a) (i) In the Central Legislature, 6 per cent of the seats shall be reserved
for the Sikhs both in the Upper and the Lower Houses.
(ii) At least one Sikh shall always find a seat in the Cabinet of the
Union.
(iii) Sikhs shall have reserved for them 5 per cent of the Central Services
or at least 8$ per cent reserved for small communities according to the exist¬
ing arrangement should be split up on the basis erf population of these
communities to ensure a separate share for the Sikhs.
(iv) In framing rules for the regulation of recruitment of the defence
forces of India, the authority concerned shall have due regard to the past
association of the Sikh community with the defence forces and particularly
to the specified class, character and the numerical percentages of posts
hitherto held by members of the Sikh community in the Indian army.
(v) The Sikhs shall also be represented on the Union Service Commission
and the various boards, committees and statutory bodies set up by the
Union Government.
(b) Provincial Legislatures: In Sind, Baluchistan, United Provinces,
Delhi, Bengal, Bombay, Central Provinces, Khar and Assam, the Sikhs
shall be recognised as a separate minority and provisions shall be made for
their representation in the Legislatures erf the said Provinces.
In the North-West Frontier Province the Sikhs shall have representation
of 10 per cent in the Legislature.
Punjab: The Punjab shall be divided into two separate autonomous
units, but in case division of the Punjab into two separate autonomous
units is not possible under the State Paper of May 16, 1946, the Punjab
shall be divided into two sub-provinces, North-West Punjab and South-
East Punjab. Bad) sub-province shall have its own Legislature and Cabinet
to deal with its own affairs. In this set-up, affairs of joint concern, if any,
shall be dealt with by a joint Legislature comprising an equal number of
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NOTES AND MEMORANDA ON MINORITIES
367
members elected by the sub-provincial Legislatures. The weightage to the
Sikhs in the joint Legislature shall be on the lines adopted for Muslims at
the Centre.
In the passing of any bill, motion, or resolution affecting exclusively a
single community, members of other communities shall not have a right
erf vote.
Executive: The executive head will be advised by the Cabinet of
North-West Punjab in affairs relating to North-West Punjab, by the Cabinet
of the South-East Punjab in affairs solely of the South-East Punjab and
by the joint Cabinet in affairs of joint concern.
In the Cabinet constituted for the administration erf affairs of joint
concern, the representation of the Sikhs shall be at least 2S per cent.
In North-West Frontier Province and Baluchistan, a Sikh Minister shall
be appointed by rotation with a Hindu Minister.
In United Provinces one Minister for smaller minorities shall be appointed.
The Cabinet shall be chosen on the Swiss model, all the Legislatures and
Cabinets having the same fixed term.
Services: In the Punjab 25 per cent representation in the Provincial Ser¬
vices shall be given to the Sikhs.
The existing reservation of 10 per cent services for smaller minorities in
United Provinces shall be split up on a population basis and a share fixed
for each minority separately.
In North-West Frontier Province, the Sikhs shall have representation of
10 per cent in the services.
3. Economic and Social Safeguards
(0 Freedom to choose one’s occupation as well as to originate enter¬
prises or industries of an agricultural, commercial, industrial or other
nature shall be guaranteed in die Union of India.
(ii) No subject of the Indian Union shall on grounds of religion, caste,
creed, place erf birth or descent shall be ineligible for any office in any
part of the Indian Union or be prohibited on any such ground from
acquiring, holding or disposing of movable and immovable property or
carrying on any occupation, trade, business or profession in any part of
the Indian Union.
(iii) All nationals, subject to rules of recruitment and reservation made
for various communities shall be treated cm a footing of equality as regards
admission to public employments, functions and honours, including
military ranks and to public establishments.
(iv) Officials may not be provisionally removed from office or provi¬
sionally or permanently retired, or transferred to another post with a lower
salary save in accordance with and in the manner determined 1 by law.
(v) All citizens shall have an equal right of access to and use of public
wells, reservoirs, tanks, hostels, restaurants, parks and all other places of
public resort.
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4. Religious, educational and cultural safeguards
(i) The preparation and use of ‘jhatkd meat in public institutions shall
be allowed and 'jhatkd meat shall be treated on a par with ‘halaT
meat.
(ii) No law shall be enacted nor any executive order made or promulgated
to restrict in any manner or to any extent whatsoever the manufacture, sale,
the keeping and wearing of kirpans by the Sikhs.
(iii) Every religious denomination shall have the right to manage its
own affairs, own, acquire and administer property, movable and immovable
and maintain and control institutions for religious and charitable purposes.
(iv) The State shall maintain intact all religious and charitable institutions
and the endowments attached to them and such religious institutions or
endowments and the properties attached to those institutions shall not be
resumed or acquired by State action and the State shall not create by
financial assistance or otherwise any endowments or institutions out of
taxes not specifically and exclusively collected from the religious community
for the benefit of which such new endowments or institutions are sought to
be created.
(v) The minorities shall have an equitable share of the sums provided
for religious purposes in the State, municipal or other budgets ta kin g
into account file requirements of nationals belonging to religious minorities.
(vi) The State shall provide special educational facilities and also facilities
to enter public services for backward classes such as the Scheduled Castes.
Aboriginal Tribes, the Mazahbis, Ramdasia and Kabir Pcnthi Sikhs and
shall protect them from social injustice and all forms of exploitation. AD
such facilities shall be available to any member of these castes and tribes
who embraces Sikhism.
(vii) The State shall protect the culture, language and script of the
various communities and linguistic areas in India.
(viii) The right to employ Punjabi for the conduct of administrative and
legislative business in the Punjab shall be guaranteed by the Constitution.
(ix) The Constitution shall guarantee Punjabi to be the court and official
language of the Punjab with option to the various communities to use their
own script, if any.
(x) The maintenance of minority educational institutions shall be pro¬
vided for according to the same principle as the maintenance of other
State educational institutions.
(xi) The Indian Union guarantees that all minorities shall have equal
rights with other citizens in forming, controlling, administering at their
own expense, charitable, social and religious institutions, schools and other
educational establishments with the free use of their language and the
practice of their religion therein.
(xii) Sciences and arts and the teaching thereof are unrestricted in the
Union of India. Elementary education is obligatory and free in the primary
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NOTES AND MEMORANDA ON MINORITIES
369
schools. Instruction in their mother-tongue is guaranteed to children and
religious minorities.
(xiii) A minority school shall be established on the application of a
national supported by the persons legally responsible for the education of
at least 40 children of that minority provided that these children are
nationals and that they belong to the same school district, and that they
are of the age at which education is compulsory and that their parents
intend to send them to the said school. If at least 40 of these children belong
to the same denomination or religion, a minority school of the denomina¬
tional religious character desired shall be established on such application.
(xiv) Legislative or administrative measures providing State aid for
schools shall not discriminate between schools under the management of
different religious denominations.
(xv) Religious minorities in the country shall have a right to establish
autonomous institutions for the preservation and development of their
national culture and to maintain special organizations for their welfare so
far as it is not incompatible with the interests of the State, the organizations
having power to levy the taxes for the maintenances of such institutions.
(xvi) The State shall make provisions for the teaching of Gurmukhi in
all educational institutions where a minimum of 10 Sikh students in one
class are receiving education.
5. Machinery to be set up to ensure that the safeguards are effective
(i) The Constitution Act shall provide the establishment at the Centre
and in each of the Provinces of independent minority commissions which
shall be composed of a representative of each of the communities concerned,
(ii) The functions of the commission shall be:
(a) to keep a constant watch over the interests of the minority com¬
munities in the area;
(b) to call for such information from the Government concerned as
the c ommi ssion may consider necessary for the discharging of its
functions;
(c) to review periodically—for example once every six months—the
policy pursued in legislation and administration by the Legislature
and the Executive in regard to the implementing of non-justiciablc
fundamental rights and other minority rights assured by the Consti¬
tution to the minority community and to submit a report to the
Government concerned.
(iii) The recommendations of the commission shall be considered by the
Cabinet concerned as soon as possible. In case any of the recommendations
are not accepted wholly or in part, the report shall be referred to the Fede¬
ral Court and the decision on such report taken by the Federal Court shall
be binding on the Government concerned.
6. Under the existing conditions of India, we do not see any possibility
in the near future or even in the distant future when minorities will not
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stand in need of protection under the modern democratic constitution. If,
however, majorities win the confidence of minority communities by their
sympathetic and generous treatment, some of the special safeguards may
automatically lapse. But others will still be needed to see that the minorities
get opportunities for full growth, and enjoy due share in the governance
of the country.
(m) Memorandum on the safeguards for the Plains Tribal people of
Assam by R. N. Brahma
March/April 1947
The Assam tribal people living in the plains of Assam form an important
section of the population of the Province. They were the dominant people
with a distinct type of culture and civilisation of their own in ancient Assam.
Owing to their backwardness in education and their present deplorable
economic condition these people have been now placed in a very miserable
and helpless condition and in their present circumstances they rightfully
deserve special safeguards for protecting their interests in the future Consti¬
tution of India. By the Government of India Act, 1935, these people have
been recognized as an important distinct minority in the Province of Assam
in the present constitution. For the first time they have been allowed four
separate seats in the Provincial Legislature (Assam Legislative Assembly)
with a separate electorate in four constituencies though according to their
population they were entitled to much more seats. The tribal people in
the plains are composed of different tribes all of whom are equally backward.
All of them have retained their own dialects. They use their own mother-
tongue among themselves and in schools they have been adopting Assamese
language as their medium of instruction. The Kacharis or the Boro Kacharis
form the major portion of the tribal population in the plains in Assam.
The following main tribes should be included in the plains tribal popula¬
tion of Assam in the future Constitution of India :
(a) Assam Plains Tribes: (1) The Kacharis—The Kacharis, the Boros,
the Meches, Dimasas, Sonwal Kacharis, the Thongal Kacharis,
(2) The Rablas, (3) The Lalungs, (4) The Miris, (5) The Mikirs
living in the plains, (6) The Garos living in the plains, (7) Deoris,
(8) The Khamtis, (9) The Singphos, (10) Akas, (11) Dallas, (12) Abors,
(13) Mismis, (14) The Hajongs, (15) The Hajais, (16) The Motocks,
(17) The Morans and such other tribes living in the plains of Assam.
(b) Ex-Tea Garden Tribes: All the Indian ex-tea garden tribes who
have settled in the plains of the Province of Assam.
There are Christians, Buddhists and Hindus among the Assam Plains
tribes and majority of them have still retained their own tribal forms of
worship and religion. It is the agreed and joint demand of these tribal
people that irrespective of any religion these people should be grouped
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NOTES AND MEMORANDA ON MINORITIES
371
together and treated as plains tribal in the future Constitution of India on
their ethnological basis.
1. Scope and nature of safeguards
The tribal people in the plains of Assam should have equal rights and
privileges to enjoy all the fundamental rights of a citizen in the future
Constitution of India. They should be proclaimed and made statutory.
Certain limitations to the fundamental rights of citizens may however be
prescribed in different Provinces according to local conditions, if it is found
necessary for protecting the interests of the tribal people. Over and above
the general fundamental rights of citizens the tribal people need some
special political, economic, cultural and other safeguards both in the Centre
and the Provinces for protecting their interests in the future Constitution
of India. The special safeguards needed for the tribal people of the plains
in Assam are detailed below :
2. Political safeguards
(a) Centre: Hie Plains tribal people in Assam demand their propor¬
tionate representation in the Central Legislature on population basis and
also representation in the Central executives for the Plains tribal people.
They also demand seats in the Central Cabinet.
(b) Provinces: The Plains tribal people in Assam demand proportionate
representation on population basis in the Provincial Legislatures with
weightage of at least 25 per cent of the total seats allotted. In Assam the
total population of the Plains tribal people will be about one-fifth of the
total population of the Province and they demand representation on the
basis of this population. It has already been stated above that the Government
of India Act, 1935, has provided the tribal people of the plains in Assam
with separate seats with a separate electorate. What should be the system of
electorate for the minority people in the future Constitution of India is
a matter which will have to be decided by the sub-committee, the main
Advisory Committee and ultimately by the Constituent Assembly after full
deliberations and discussions, after having the views from all the representa¬
tives of the different minority communities. So far as the tribal people
of the plains in Assam are concerned some of them think that in the
present circumstances joint electorate system with reservation of seats on
population basis may be suitable for them but majority of them still feel
that so long the Plains tribal people cannot feel their position secure in the
hands of the more advanced people there should be provision for representa¬
tion on population basis with a separate electorate for the Plains tribal peo¬
ple in Assam in the future Constitution of India though they welcome the
day when there will be no more necessity for such a separate system. They
feel that they should be given the right of freely selecting their own repre¬
sentatives without interference of other people. Some think that a system of
election by proportional representation with the single transferable vote
may serve their purpose.
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The tribal people erf the plains in Assam demand that there should be
statutory provision for reserving at least 3 (three) seats for the Plains
tribal people in the Assam Cabinet or Ministry in the future Constitution
for safeguarding and looking after the interests of the tribal people. They
also demand adequate representatives on population basis in local bodies.
3. Economic safeguards
(a) Centre: The Plains tribal people should have their legitimate and
due shares in Central Services, contracts and all other economic facilities
and that they should not be exploited in business spheres.
(b) Province: The tribal people living in the plains of Assam should
be protected from being exploited in economic and business spheres. They
should have adequate representation on their population basis in all Govern¬
ment services. There should be reservation of all the Government contract
works on their population basis for the Plains tribal people. Where neces¬
sary they should be given preference and special facilities for developing
and improving their economic condition. They should have due share in
trade, commerce and industries erf the Province.
Land Problem: In Assam the question of land problem has become very
acute to the tribal people in the plains. Thousands and thousands of these
people have become landless. They are being exploited by the immigrants
and other more advanced people everywhere in all the districts of the
Assam Valley in the Province. There must be some special statutory provi¬
sion for protecting these Plains tribal people with their lands. Some
blocks or belts will have to be created for these people where other non-
tribal people should not be allowed to take settlement of lands and where the
sale or transfer of lands to the non-tribal should be strictly prohibited.
There should be reservation of sufficient lands for providing the landless
tribal people with lands and for their future expansion.
4. Religious, cultural and educational safeguards
Religion: There are Christians, Hindus and Buddhists among the tribals
in the plains of Assam and majority of them have still retained their own
forms of worship and religion. There should be full freedom of religion.
Cultural: Many of the Assam tribals living in the plains such as the
Kacharis, and the Miris have got their own distinct cultural peculiarities.
They have their own dialects, arts, traditions, social customs and usages.
All the plains tribal people in Assam should have the statutory rights to
retain and develop their own cultural peculiarities.
Education : In Assam the Plains tribal people are the most backward
people in education. Over and above the general provisions in the provin¬
cial annual budget where the tribal people should have their due share,
specific sums should every year be set apart as earmarked provisions from
the public funds for the educational and cultural developments of these
people in the areas where they preponderate. There should be reservation
of sufficient number of scholarships both for technical and general
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NOTES AND MEMORANDA ON MINORITIES
373
education on population basis for the tribals in the plains in schools and
colleges. There should be special officers, and a board or a committee
to advise and look after the education of these tribal people. More
schools should be opened in tribal areas. Adequate and sufficient aids
should be given to die schools in tribal areas. In the areas where it is
found necessary the tribal people in the plains should be allowed the option
of introducing their mother-language or vernacular as medium of instruction
at least in the primary schools.
5. Machinery
One of the Plains tribal Ministers who will be in the Provincial Cabinet
or Ministry will form a board with other tribal members of the Legislatures
and advise the executive head of the Province and see that the safeguards
are effective. There should be statutory provision that the executive head
of the Province shall have to hear and follow the advice of that Minister.
6. These safeguards should continue till the tribal people of the Province
of Assam consider them necessary and till they can feel their position
secure.
(n) MEMORANDA BY OTHER INDIVIDUALS AND ORGANISATIONS
(a) Memorandum by the representatives of the Jain community
March/April 1947
The Jains are an ancient community of India with its own distinctive
religion and philosophy, worship and ritual, social customs and manners.
It is now recognized amongst oriental scholars that Jainism is essentially a
non-Vedic religion and philosophy and in this connection attention may be
invited to the views of Prof. Dasgupta and Pandit Jawaharlal Nehru. The
relevant extracts are reproduced below for ready reference :
Thus Mahavira was a contemporary of Buddha, but unlike Buddha he was
neither the author of the religion nor the founder of the sect, but a monk
who having expoused the Jains creed afterwards became the seer and the
last prophet ( Tirthankara ) of Jainism. His predecessor Parsva, the
last Tirthankara but one, is said to have died 84,000 years before Maha-
vira’s Nirvana. The story in Uttaradhyansutra that a disciple of Parsva
met a disciple of Mahavira and brought about the union of the old Jainism
and that propounded by Mahavira seems to suggest that this Parsva was
probably a historical person.
According to the belief of the orthodox Jains, the Jaina religion is eternal
and it has been revealed again in every one of the endless succeeding
periods of the world by innumerable Tirthankaras. (Chapter VI. The Jain
Philosophy—The Origin of Jainism— 'A History of Indian Philosophy by
Das Gupta—page 169).
Buddhism and Jainism were certainly not Hinduism or even the Vedic
Dharma. Yet they arose in India and were integral parts of Indian life,
25
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FRAMING OF INDIA’S CONSTITUTION
culture and philosophy. A Buddhist or Jain in India is a hundred per cent
product of Indian thought and culture, yet neither is a Hindu by faith. (Dis¬
covery of India by Pandit Jawaharlal Nehru—Chapter 4—What is Hinduism,
page 73).
Although Jainism is, to quote Panditji, “a hundred per cent product of
Indian thought and culture" it is often forgotten that the Jains have dis¬
tinctive social and religious customs. Even their ritual is still regulated
according to the injunctions in the Jains sacred literature. It may also be
mentioned that Jains have even a system of law of their own and attempts
have been made by prominent Jains to secure its acceptance so as to regulate
legal relations amongst the Jains according to their own system of law.
It may also be pointed out that the Jains do not follow any Varna system
nor is there regular inter-marriage between the Hindus and the Jains.
The Jains’ doctrine of non-violence ( Ahirnsa ), which is the foundation
of the Gandhian creed, and universal brotherhood and tolerance are far
too well-known to need special mention here. The Jain doctrine of Anekanta -
vada and Syadvada represents a unique contribution to logic and can easily
provide a theoretical basis for intellectual tolerance when the world is divided
into ideological camps warring against one another. The contribution of
Jainism to vernacular literature is noteworthy and along with the Buddhists,
Jains were the first to use the languages of the people for their sacred
literature. It may also be mentioned here that the Jains have their own legal
system. High Court Judges like Kumaraswami Shastri, Officiating Chief
Justice of the Madras High Court, and Rangnekar of the Bombay High
Court have held that it is utterly wrong to think that the Jains were
originally Hindus and later converted to Jainism. Raghavachariar in his latest
edition of Hindu Law (1947) supports this view.
In modern times the Jains have played an important part in all walks
of national life and their complete identification with the national movement
for freedom stands out prominently as compared with the role of other
minorities who have often been obscurantists and demanded heavy price
for their support. It is a matter of pride to us that the Jains did all they
could to promote the Congress struggle for freedom and so far never
asked for special or unusual concessions.
In view of these considerations we strongly feel that the Jains should be
treated as a minority. They are a distinctive group with its own distinctive
culture and it would be doing a grave injustice to the Jain community if
they were merely treated as a branch of Hinduism. Besides this is utterly
wrong. Because of their intellectual and moral doctrines they have been
always ready to learn and—assimilate whatever is good in other communities.
That some of their customs and manners are indistinguishable from those
of the Hindus only speaks volume for tolerance and good sense. It is un¬
fortunate that the ignorant have therefore been misled into treating the
Jains as only a section cl the Hindu community.
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375
The recognition of the Jains as a separate minority has now become
necessary for at least two reasons. First, in spite of their glorious past and
substantial contribution to modern India, the community has been declining
in numbers and it is not in a position to make its rightful contribution to
the intellectual and cultural life of the country. Their ancient culture and
civilization will need special cane and protection when a permanent consti¬
tution is to be framed, the denial of the minority status to the Jains will
mean their death-warrant as a distinctive cultural group especially when
all other minorities are going to be recognized. Even the legitimate sections
of Hinduism like the Harijan and a small community like the Parsees are
treated as minorities. Although the Jains held important positions in industry
and commerce and other spheres of life, as a community the Jains are
backward. At one time the Jains formed a substantial part of the Indian
population but today they number barely twenty lakhs. We, therefore,
demand in the first place that the Jains be treated as a minority
and given all rights and privileges which may be given to other
communities.
1. What should be the nature and scope of safeguards for minorities in the
new Constitution?
With regard to the first question, the value and scope of safeguards for
Jains in particular will be a full provision for the protection and promotion
of their culture, political and economic position in the community. Special
provision will have to be made for education, health and other social
services, employment in Government services, temples and other historical
and cultural monuments, facilities for publication of sacred literature and
promotion study and research in the universities as well as other bodies
which the State might set up.
2. What political safeguards are needed for the minorities in the Union and
the Provincial Constitutions?
The actual safeguards for ensuring the rights and privileges of the Jain
community should be on parallel lines to those provided for the other
minorities. The Jains should be given special representation in the adminis¬
trative, executive, judicial, diplomatic, foreign and military services of the
nation, of course, subject to the Government rules and regulations which shall
be applicable thereto. They should also be given special representation in
the Central and Provincial Legislatures, local self-governing bodies, as well
as in all the official committees set up from time to time by the Central and
Provincial Governments.
3. What economic safeguards are necessary for the minority in the Union
and the Provincial Constitutions?
With regard to the economic safeguards it is suggested that the legitimate
interests of Jain commerce, industry and trade should be protected against
any communal discrimination. In all measures which involve distribution of
national wealth the community should be given a special position in
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FRAMING OF INDIA’S CONSTITUTION
consonance with the present position of the Jains as well as general principles
accepted for other communities.
4. What religious, educational and cultural safeguards should be provided
to the minorities at the Centre and in the Provinces ?
(a) No legislation affecting religion, culture, philosophy, temples, maths and
their property as well as the personal law of the Jains should be introduced
without the consent of the Jain community and their accredited representa¬
tives in the Central and Provincial Legislatures.
(b) So long as the legal system is based upon the principles of codified
Hindu and Muslim law the Jain law should be accepted as binding as the
personal law for the Jain community.
(c) Special provision for education in all stages of the State system of
education.
(d) Special provision for research and study of Jainism in all its aspects
in the universities and other bodies set up for the purpose.
(e) Special provision for the publication and distribution of the sacred
literature of the Jains.
(0 Special provision for the preservation of Jain monuments, temples.
(g) Special protection for private institutions and organisations in their
legitimate activities for the protection and promotion of Jain interests.
5. What machinery should be set up to ensure the effective enforcement of
tninority rights?
In order to protect the interests of the minorities and to enforce their
rights, a permanent commission consisting of accredited representatives of
the various minorities should be set up both at the Centre and in the
Provinces. All legislation affecting the minorities should require the prior
consent of those commissions before such legislation is introduced and also
should be approved by it. Any member of the commission may demand
that legislation affecting his own community should require the consent of
that particular community. In case of dispute between the legislature and
the commission the matter should be referred to the Federal Court and its
precedents should be binding on both the legislature and the community
concerned. It is suggested that in any Central judicial machinery that may
be set up there should be a special section which alone would be competent
to decide both questions of law and fact with regard to the minorities.
6. How is it proposed to finally eliminate these safeguards? at what time and
under what circumstances?
The question of eliminating safeguards for minorities can only arise
when complete harmony and concord are established and when the State
enjoys complete confidence of all its component groups. It is not easy to
visualize the future developments and much will depend upon the working
of the legislature, the commission for minorities and the judicial machinery.
It seems to us that the best solution for the entire problem of minorities
will be to set up a second chamber both at the Centre and the Provinces
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377
consisting of accredited representatives of the various distinguished cultural
groups in the country with equal powers of legislation and executive with
those of assemblies or councils that may be set up. A council of nationalities
as an integral part of the legislative and executive apparatus of the State
will go a long way towards restoring complete confidence and goodwill.
Such a council should give equality of representation to all component
groups irrespective of their number or importance. For this purpose minori¬
ties and distinctive groups should constitute special constituencies and
representatives should be elected directly on the basis of adult franchise.
(b) Memorandum on Minorities by K. T. Shah
March/April 1947
Just as there are rights and obligations of citizens as well as human
beings, so also there are certain collective rights and duties of communities,
or groups of individuals. In recent years these have assumed considerable
publicity and proportions. The so-called national or special minorities in
Central Europe,— e.g., Germans in Poland—first brought into prominence the
idea of the rights of minorities, which were specifically included in treaties
between sovereign States, and guaranteed,—in a manner of speaking—by the
then League of Nations.
Ordinarily, minorities being also made up of citizens, would claim no special
rights within the State they live in. But minorities are such and so constituted,
that they could never hope to be changed into a majority, and so come to
power in a democratically governed State. The problem assumes a wholly
new aspect.
The distinctive feature of such indelible minorities being racial, or reli¬
gious, they refuse to be absorbed in or assimilated to the majority of the
country in which they live; and consequently require special safeguards for
what constituted their separate nationality or culture, and extra-national
guarantees so as to assure them the continued enjoyment of those rights.
The experience of the League of Nations, while it was at all a living organi¬
sation, in defining and guaranteeing those rights is by no means encouraging.
Nevertheless the precedent set in the Versailles Treaty with Poland has
started a new ideology which every country, seeking a continued maintenance
of peace and tranquillity on its own borders, and at the same time struggling
to establish a working democracy has to face in this generation.
In this country, we have religious minorities, which are of an even more
inextinguishable character than the racial or national minorities of Central
Europe after World War I. The consciousness of apartness between the
Hindu and the Muslim was fading in the nineteenth century under a common
subjection to British imperialism. With the growth of political consciousness
amongst the people, however, a consciousness of separateness by religious
groups has developed and those who are in a religious minority, scattered
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throughout the different parts of the country, began to demand special
protection and safeguards. At first the safeguards took the form of separate
electorates on religious grounds which some of the most ardent among
present-day minority leaders had condemned unreservedly as fatal to the
cause of national integrity and real democracy. But the continuance of
separate electorates led to the revolution of political parties on religious
lines rather than those of difference in economic interest or political ideals.
With the progress of self-governing constitutions and extensions of demo¬
cratic forms, the existence of separate electorate, at first between the two
major communities was extended to some of the other religious minorities
and economic interests which made not a nation but a conglomerate. The
feeling of ineradicable difference grew and the hope of separate electorates
being soon dispensed with faded. This feeling of separateness culminated
during the six years of the last war in a demand by the largest minority for
partition of the country on lines of religious differences concerning the
majority of the population living in the different Provinces, popularly known
as Pakistan. But even if the demand for partition eventuates, the problem of
minorities will not be solved; it would only be duplicated inasmuch as both
sections of the partitioned country will have a minority in each of the other.
Attempts have, therefore, been made again and again all these years to
solve this problem; but every attempt has so for ended in failure making
the tension and virulence worse than ever before. There is even a feeling, in
certain quarters, of vagueness, uncertainty or ignorance of the real demands
of the most vocal and best organized minority; and an apprehension that
each tune the endeavour to settle the problem foils the demand grows.
Once upon a time these demands were crystallized as what is known as
the 14 points of Mr. Jinnah. Though every one of these has been granted
and become a fat accompli the demand for more rights, guarantees and
safeguards continues, with yearly increasing intensity and virulence; the
reason lies in the old French saying "L’appetit vieut en manageauf'. The
minorities profess to be dissatisfied with the experiment in Provincial auto¬
nomy tried between 1937-39 and resinned in 1946; and declare that there
is no real chance for the largest and the best organised among them to
have their due share in the governance of the country and contribute towards
its moral and material progress unless they have their own separate states,
with an effective majority of their community so as to be able to form their
own government
The mutual distrust has become universal and spread to other communities
in some degree or other; it makes the permanent solution of the problem
more than ever difficult. It is. however, impossible to partition the country,
set up separate states, or even autonomous units of the Federation, if every
religious minority should choose that as the only solution of die problem.
For other minorities are not only very small in numbers; they are scattered
in microscopic portions all over the country. The feeling, moreover, of one
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NOTBS AND MBMORANDA ON MINORITIES
379
community holding in its own separate sovereign State, large numbers of
another community as hostages for the good behaviour of its co¬
religionists in the other part of the country, will not add to the chances of
amicable settlement, while that sentiment persists in large areas. It is,
therefore, still worthwhile to try and see if a solution is found, so as to
meet all die legitimate demands or well founded apprehensions of the
largest single religious minority in the country if only to serve as a model
and a precedent and assurance and guarantee for others to allay their fears.
For these reasons the rights of communities which are indelible, being
constituted on lines of religion or race, will have to be defined with some
care and precision so as not only to meet all the just demands for safe¬
guarding their religion and culture, but also to prevent any abuse of the
rights guaranteed to minorities as against those of the rest of the country.
For it must never be forgotten that the rights of minorities are not obliga¬
tions of the majority but rather the guarantees and concern of the entire
community. To take the most extreme case, the guaranteed position of any
minority cannot be used as a power of veto over all progress of the majority,
or entitle the minority community to act as a group of quislings, as the
Nazi Germans are said to have done against the integrity and security of
the country of their birth in favour of the country with which they claimed
racial or religious affinity. As stated already, all rights must be coupled
with obligations, and all arrangements made for the full realisation and en¬
joyment of these rights must also embody the means to guard against their
abuse, or unwarranted illegitimate extension.
The most important demand of India’s religious minorities lies in an
assurance of freedom of worship in accordance with one’s own faith and
belief. But this freedom of worship is assured and guaranteed to every
citizen, and not only to a community which may be apprehensive of its
religious integrity not remaining undisturbed. Being part of a common right
of citizenship it must be accompanied by equal toleration of all the
corresponding rights of other individuals or communities, whether they
worship (me God, more Gods, or no God; and whether the worship is
conducted in forms and ceremonies one accepts oneself, or in other forms.
The case of the last named is much more important, in that hostility
towards the atheist is likely, in the present state of our education and public
sentiment, to be much greater than that towards believers in Divine Order
of the Univase or in multiplicity of Gods.
The right to freedom of worship is not merely a theoretical right; it is
a matter of daily exercise and enjoyment, which must, therefore, be so
conducted and observed that in all forms of religious worship, ritual, or
ceremonies nothing is done that would offend the corresponding sentiment
of other communities living in the same state. One may go further and say
that nothing is done in the name of freedom of religious worship which
offends against the tenets of public decency or morality; from the naked
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FRAMING OF INDIA’S CONSTITUTION
sadhu to human sacrifice must be positively forbidden and punished where¬
ver the prohibition is disregarded.
Side by side with and as part of the right and freedom of worship is
claimed the right of keeping intact one’s own language and culture. This
is not necessarily the common or official language of the country; but rather
a language and script used by the community claiming the right as something
marking its separate individuality.
It may but need not have any connection with the language of the scriptures
of the community making the claim. The language of scripture is hardly
in any case a language of daily intercourse. But the protection and safeguard
of the language and script used in daily life by the minority, and facility to
cultivate the same is demanded as part of the rights of minorities. This
if conceded will not only keep up the feeling of separateness between the
communities, but prevent the evolution of a common language so essential
for national solidarity and a dmini strative efficiency. Nevertheless if the
minorities attach so much importance to their right in this regard, it is
much better to concede it than keep up the gulf by opposing.
Culture again is a wide term in which religion is included. There is mutual
reaction upon one another, and so a given culture is deemed to be particular¬
ly associated with a given religion, so that one cannot be separated from
the other. Due safeguard and assurance of the language and culture of all
minorities,—with the corollary that full opportunity for the use of these in
educational and other institutions of social services or public utility will
be facilitated, and every opportunity afforded for its cultivation and develop¬
ment, without prejudice to the equal rights of others to the same degree
and in the same field.
Another similar right demanded by religious minorities is in regard to
the sanctity of the personal law of a community professing a certain religion.
No change should be made in the law or custom governing the life or work
of individuals professing a given religion, it is urged, without the consent
of a prescribed majority (say three-fourths) of that community.
This privilege if assured and guaranteed by the Constitution is likely to
prove a great hindrance to the progress of social reform and economic
reconstruction, particularly in those communities which boast of a very
ancient social order founded on religion. Religious orthodoxy would in
those cases be in very close alliance with vested interests and economic
exploitation as in such cases the majority would be swayed almost uncons¬
ciously by the desire to protect and maintain their vested interests. The
result would be that no change or reform can take place except with the
help of enlightened opinion in other minorities living in the same sovereign
State and enjoying equal rights.
Economic reconstruction, moreover, with a view to assuring social
equality and equitable re-distribution of the wealth produced in the country,
would be grievously impeded if such a veto is guaranteed to a reactionary
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NOTES AND MEMORANDA ON MINORITIES
381
group in the name of rights of minorities, at least insofar as its own social
order is concerned. For a country like India, in which various communities
are so closely entwined in every part of the country, and where the existing
social order has been the outcome of mutual influences, such an exclusive
position assigned to any given community, on the grounds of due protection
of religion, and bearing upon their social order and economic activities would
become a charter for reactionarism.
(c) Memorandum by the Working Committee of the All-India
Adi-Hindu Depressed Classes Association
April 15, 1947
Historical Survey
1. The position of the Scheduled Castes in India is unique. It is impossible
to find a parallel to it. They are 70 million in population and thus on a
population basis they constitute the third largest community in India, the
other two being the Caste Hindus and Muslims. It is not necessary to dwell
at length on their past history and how their degradation has taken place.
Suffice it to say that on arrival in this country, the Aryans, now known as
Caste Hindus, took the first step towards the original inhabitants now known
as Scheduled Castes—they submerged and suppressed them. The light of
knowledge was completely screened away from them. The conflict of their
economic and political interests with those of the children of the soil made
them adopt a systematic suppression of the latter through the ages. They
called themselves “Aryat’ or virtuous and from time to time styled the
original inhabitants as “Dasyu”, “ChandaT’, “Pancham ”, “Antyaj’’, “Varna-
sankar" and ", Bahiskrita” etc. Eventually they went so far as to assign to
the children of the soil the status of “Asprisha” viz-, untouchables—a system
to which the world’s history bears no parallel.
The latest name given by them to the Depressed Classes is “Harijart”
which connotes the offspring of “Devadasist’ or "Murlts” dedicated in tem¬
ples in the service of Gods or “Hari”. This is in keeping with the names
given to them in succession and is meant to perpetuate the inferiority com¬
plex. With the utmost emphasis at its command, the Working Committee
of the All-India Adi-Hindu Depressed Classes Association protests against
and condemns the use of this disgraceful and humiliating term for the
Scheduled Castes.
The Poona Pact
2. This much for the past. Let us now take stock of the present and
lode forward to the emancipation of the depressed classes in the new
Constitution of a self-governing India. The experience of the last two elec¬
tions held under the Government of India Act 1935 has proved that the
system of joint electorates has deprived the Scheduled Castes of the right
to send true and effective representatives to the Legislatures and has given
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the Caste Hindu majority the virtual right to nominate members of the
Scheduled Castes who are prepared to be the tools of die Caste Hindu
majority. In the Poona Pact, the panel system was provided to allay this
but has proved totally ineffective. The process is not only cumbrous but
does not provide any guarantee for the return of the real representatives
of the Scheduled Castes. It is obvious that a candidate securing the lowest
number of votes in the panel is returned by Caste Hindu votes and the
candidate securing the highest number of votes in the panel is defeated.
This gives a chance to the Caste Hindus to set up dummy Scheduled Caste
candidates and get them returned by Caste Hindus’ votes. The Working
Committee of the All-India Adi-Hindu Depressed Classes Association is
opposed to the panel system because it involves double election and does
not ensure the return of the real representatives of the Scheduled Castes.
Hence the committee urges the abrogation of the Poona Pact
Constitutional safeguards for the Scheduled Castes in the new Constitution
3. The Working Committee of the All-India Adi-Hindu Depressed Classes
Association demands that the new Constitution shall contain within itself
provision for securing the following purposes :
(1) For representation of the Scheduled Castes in proportion to their
population :
(i) in the Central and the various Provincial Legislatures.
(ii) in the Central and the Provincial Executives.
(iii) in municipalities and all statutory local bodies.
(iv) in the public services.
(v) <mi the Public Service Commissions.
(2) For their representation in the Central and the various provincial
legislatures by :
(a) adult suffrage.
(b) by separate electorates or by reservation of seats in joint elec¬
torates provided that a candidate to be declared elected must secure
40 per cent of the total number of votes recorded by members of
the Scheduled Castes.
(3) For earmarking a definite sum in the budgets of the Provincial and
Central Governments for the secondary, university and advanced
education of the Scheduled Castes.
(4) For reservation of Government lands for Scheduled Castes who are
landless agricultural labourers through a Settlement Commission.
(5) For the recognition of the above provisions as fundamental rights
beyond the powers of die Legislatures or the Executives to amend or
alter or abrogate.
4. The Working Committee further demands that die following funda¬
mental rights shall be made part of the Constitution of India:
(1) All citizens are equal before the law and possess equal civic rights.
(2) All citizens have die right to education without any distinctions of
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NOTES AND MEMORANDA ON MINORITIES
383
caste or creed in the matter of admission into any educational insti¬
tutions, maintained or aided by the State.
(3) No person shall, by reason of his caste or creed be prejudiced in
any way in regard to public employment, office of power or honour
and the exercise erf any trade or calling.
(4) All citizens have an equal right of full enjoyment of the accommo¬
dations, advantages, facilities, privileges of inns, rivers, streams, wells,
tanks, roads, paths, streets, public conveyances on land, air and
water, theatres and other places of public resort or amusement.
(5) No form of forced labour shall be permitted.
(d) Memorandum by Jain Swbtambar Conference
May 7, 1947*
EXTRACTS
* * *
2. The Working Committee of the All India Jain Swetambar Conference
at their meeting held in Bombay on the 21st March 1947 considered the
position of the Jains in the political life of the country and the question
whether any safeguards were necessary to be provided in the constitutions
of the Union and the Provinces which are being forged by the Constituent
Assembly with great desire to treat all the communities in the country with
justice and equity and fair {day, to protect the interests of the Jain com¬
munity and passed a resolution that a representation should be made to the
Constituent Assembly for that purpose and authorised us to make this
representation. In accordance with the resolution and in conformity with
the discussion and opinions expressed at the meeting we beg to submit
this memorial for the consideration of the Constituent Assembly.
3. Though the Jains are racially Hindus and have their culture which is
very much common with the Hindus, their religious philosophy, belief,
customs and practices have considerably influenced their thought, their
actions and their mode of life; and this influence has been so marked that
they have been recognized as a distinct community and their culture also
as distinct from others.
4. Their world famous temples on Shatrunjaya and Giraar in Kathiawar,
at Dilwara on Mount Abu and on Sametsikhar or Parasnath Hills in Bihar
and their other places of pilgrimage all over the country and particularly in
Bihar, Kathiawar, Gujarat and in Central and Southern India, their ancient
libraries (Pustak Bhwtdars ), their literature both religious and secular, their
religious orders, their religious and socio-religious institutions, their trusts
•The memorandum was signed by Meghjibhai Sojpal, Chandalal Vardhaman Shah,
Damjibhai Jathabhai, H. H. Dalai, Mohanlal B. Jhaviry.
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FRAMING OF INDIA’S CONSTITUTION
and their charitable institutions are a rich and priceless heritage which
they cherish and desire to preserve. They desire that in the management
and a dmini stration of these institutions there should be no interference of
other persons who do not understand their sentiments and susceptibilities
and the ideas and ideals behind them. Your Honour will appreciate that
this desire of the Jains is just and proper and reasonable.
5. In the interests of the unity of the country which is of supreme impor¬
tance and especially so at the present critical moment of the country's des¬
tiny, the Jains have decided not to ask for any separate representation in
the legislative, executive or administrative institutions of the country nor
to claim any separate political rights for them. They have thrown
their lot with the other Hindus and have decided to stand together and work
together and co-operate with all other communities in the country for the
common good of all. The Jains have made their contribution and a very
valuable contribution too in the country’s life: and they do want to serve
the country for the common good. But they often feel that their interests
have been neglected or over-looked and that they have suffered by reason
of their having no influence and effective voice in the governance of the
country. This feeling has at times tempted them to ask for and claim a
separate representation. But at this supreme moment of the country’s destiny
they do not desire to strike a discordant note. They hope that by their
industry, ability and service they will occupy their proper place in the
political, social and economic life of the country and enjoy their proper
share in the common good. However there is a common feeling in the
community that there should be no interference by others in their religious
or socio-religious institutions as stated above.
6. We may here cite some instances where such interferences were either
made or sought to be made. In Bihar, during the regime of the popular
Ministry in 1938 a Bill called “Bihar Hindu Religious Endowments Bill”
was introduced with the object of preventing mismanagement of the Hindu
temples and maths and other charitable institutions in Bihar. It was also
made applicable to the Jain temples and other institutions. When we exa¬
mined the Bill it was found that there were many clauses in the Bill which
went beyond the said object. There were provisions for the appointment
of a committee by the Government with powers to make and sanction
budgets for the administration of the temples and institutions covered by
the Bill. This surely was an interference which the Jains resented. Besides,
on the committee consisting of about twelve members there was only one
seat provided for the Jains. Your Honour will appreciate that such, a com¬
mittee consisting mostly of persons who are not Jains cannot understand
the religious sentiments and the ideas and ideals behind the various insti¬
tutions so as to make or sanction a proper budget. Our Working Committee
had made a representation to the Bihar Government and had also joined in
an All-India deputation which had an interview with the Prime Minister
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NOTES AND MEMORANDA ON MINORITIES
385
and other Ministers concerned at Ranchi. Thereafter as the ministry resigned,
the Bill was dropped. The Jains however apprehend that in future some
such legislation may be introduced.
7. In Bombay an Act popularly called the Beggars Act was passed about
year ago. In die said Act the definition erf the term “beggar” is made so
wide that some of us were of the opinion that it would cover a Jain Sadhu.
Our Working Committee thereupon made a representation to the Govern¬
ment seeking to expressly make an exception in case of a Jain Sadhu whose
activity for collecting his food it was not and it could not be the intention
of the legislature to prevent. The Government replied that they had instructed
the police not to interfere with the Jain Sadhu going about to collect his
food. However the Government was not pleased to grant even such a
reasonable and just request to provide for a legislative exemption in favour
of a Jain Sadhu. Now the position of the Jain Sadhu in respect of the pro¬
visions of the said Act is precarious. He has to depend upon the mercy of
the executive.
8. These instances have caused grave apprehension in the mind of the
Jain community that in future legislation there may be such interferences
with their institutions.
9. We have therefore to request Your Honour to consider this matter in
the Constituent Assembly and to make suitable provisions in the declaration
of fundamental rights in the Union or Provincial constitutions either gene¬
rally or specially granting protection to the Jain community against such
interferences in future. We submit that no law interfering with the manage¬
ment or administration erf the Jain temples and places of pilgrimage, their
religious orders of Sadhus and Sadhvis, their literature and Pustak Bbandars,
their trusts and other religious and charitable institutions, their art and
architecture, should be enacted which has not the approval of the
community.
(e) Letter from Maulana Hifzur Rahman and Abdul Qaiyum Ansari
July 24, 1947
We beg to request that the following may kindly be included in the
agenda for discussion in the next meeting of the committee:
(i) Whereas the present judicial system in India has never harmonised
with the spirit of the Islamic laws, the system of appointing Muslim Kazis
to settle the questions of marriage, divorce, Khula etc. be introduced so that
they may be decided according to the tenets of Islam.
Note: This system shall be confined to the Muslims only without being pre¬
judicial to the religious rights of non-Muslims.
(ii) A permanent separate portfolio to administer the Muslim waqfs be
attached to a Minister of State in each Province and at the Centre and
that Minister be a Muslim as far as possible.
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(iii) As the protection of cultural rights of minorities in every unit in the
Union of India has already been incorporated in the Declaration of Rights
by the Constituent Assembly, the Muslim minority can rightly claim for
the protection of its cultural rights. Therefore, the High Courts of die
Provinces (units) and the Supreme Court of the Union should each have
a Muslim judge to judge the propriety of any cultural right coming under
the purview of protective laws of the States.
(iv) Educational scholarships, stipends etc. to minorities and grants-in-aid
to educational institutions of minorities should not be given according to
the proportion of the population of any minority. Such kinds of benefactions
ought to be granted in proportion to the backward conditions of the mino¬
rity concerned, i£„ the greater the backwardness of a minority the greater
the grant erf benefaction to it
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MINUTES AND SUMMARY OF THE DECISIONS OF THE
SUB-COMMITTEE ON MINORITIES
February-July 1947
[The Subcommittee on Minorities held three sittings. At its first
sitting on February 27 and 28,1947, H . C. Mookherjee was elected Chair¬
man and the scope of the work of the sub-committee was discussed.
The sub-committee also considered its procedure and adopted a
questionnaire. At its second sitting—April 17-19—the sub-committee
discussed the report of the Sub-Committee on Fundamental Rights and
considered how far its recommendations required amendment or ampli¬
fication for the specific purpose of protecting minority rights. At
its third sitting—July 21-27—the major points arising out of the replies
to the questionnaire and the notes and memoranda received from mem¬
bers and others were considered. The minutes of the meetings on
February 27 and 28 and a summary of the decisions taken at the meet¬
ings held in July are reproduced below. (For the minutes of the April
meetings sec Document No. 5 and for the replies to the questionnaire
and notes and memoranda see Document No. 5).]
(I) MINUTES OF THE MEETINGS ON FEBRUARY 27-28, 1947
February 27, 1947
Present: (1) Mr. R. K. Sidhwa; (2) Dr. S. P. Mookerjee; (3) Mr. F. R.
Anthony; (4) The Hon’ble Govind Ballabh Pant; (5) The Hon’ble Shri C.
Rajagopalachari; (6) Sir Homi Mody; (7) Mr. K. M. Munshi; (8) Rajkumari
Amrit Kaur; (9) Mr. P. R. Thakur; (10) The Hon’ble Mr. Jagjivan Ram; (11)
Mr. H. Khandekar; (12) Dr. Alban IYSouza; (13) Sardar Harnam Singh; (14)
Sardar Ujjal Singh; (15) Dr. B. R. Ambedkar; (16) Mr. P. K. Salve; (17) Mr.
Jairamdas Daulatram; (18) Dr. H. C. Mookherjee; (19) Bakshi Sir Tek Chand;
(20) Mr. S. H. Prater; (21) Mr. M. V. H. Collins; (22) The Hon’ble Maulana
Abul Kalam Azad; (23) Mr. Rup Nath Brahma.
On a motion by Bakshi Sir Tek Chand. Dr. H. C. Mookherjee was elected
Chairman of the sub-committee.
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There was a discussion, in which several members took part, regarding
the scope of work of the sub-committee and in particular on the point that
the work of the sub-committee to some extent overlaps the work of the
Sub-Committee on Fundamental Rights. Dr. S. P. Mookerjee suggested that,
instead of spending time on a discussion—which was bound to be somewhat
academic—as to the precise scope of the two sub-committees, they should
decide that such members of their sub-committee as desired to do so should
send written proposals regarding the minority rights which they wanted
inserted in the Constitution. These could be circulated and discussed at their
next meeting. Mr. K. M. Munshi suggested instead that a small sub-com¬
mittee may be formed to examine : (1) what is the precise scope of the
expression “clauses few the protection of minorities”? (2) what are the
provisions in the Constitution Act at present for the protection of minorities?
and (3) what are the clauses in the constitutions of other countries for the
protection of minorities? After this study is completed, the small sub¬
committee could report to the main sub-committee as to the lines on which
further work should be proceeded with. Mr. C. Rajagopalachari deprecated
the committee’s taking up the question of political minorities. He thought
instead that they should concentrate on the question of the rights of the
minorities commonly so-called, such as the Scheduled Castes, Anglo-Indians,
etc. Pandit Govind Ballabh Pant disagreed with this view and said that the
question of the so-called political minorities was also a matter to be dis¬
cussed by the committee. At the same time, he disagreed with Dr. S. P.
Mookerjee’s suggestion for the submission of written memoranda. He thought
that if any minority group in the sub-committee put down its claims in
writing, there was a danger that the claims would be somewhat exaggerated
and that the minority group would feel bound, on grounds of prestige, to
stick to their claims however unreasonable. The committee was engaged
in a task of great delicacy, and he suggested that instead of starting with
written memoranda, it would be desirable to have a general discussion. Mr.
Jairamdas Daulatram pointed out that the broadcast* of Sir Stafford Cripps
immediately after the Cabinet Delegation’s Statement of the 16th May was
quite clear as to the scope of the minority problem and that the committee
was not confined to examining the question of the minorities ordinarily
so-called. Sardar Ujjal Singh read the extracts from the speech of Sir Stafford
Cripps dealing with major and minor minorities; these extracts made it clear
that the scope of their work was wider than that suggested by Mr. Rajagopala¬
chari. Mr. Rajagopalachari, on further consideration, accepted this view.
Mr. Frank Anthony disagreed with the proposal of Mr. Munshi to have a
sub-committee of the sub-committee. He suggested that there were a number
of valuable documents already in existence such as the Sapru Committee
Report and the pamphlets prepared by that committee, and it would be
♦See Vol. I, Document No. 48(ii).
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DECISIONS OF THE SUB-COMMITTEE ON MINORITIES
389
a good thing if the sub-committee could discuss these documents and put
down certain broad questions for consideration. Dr. Ambedkar said that he
disagreed with Pandit Govind Ballabh Pant regarding the danger of different
groups putting in exaggerated claims in their written memoranda and their
sticking to the memoranda on grounds of prestige. He himself would keep
an open mind and was prepared to enter into discussions on a basis of give
and take. He thought the best procedure was to invite concrete proposals
from the different groups for the purpose of discussion. Mr. Sidhwa agreed
with Dr. Ambedkar. Mr. Jairamdas Daulatram said that the sub-committee
is not fully representative yet. Therefore he suggested that no fixed time¬
table should be laid down. He wanted the time-table to be flexible so as
to take into account possible changes in the political situation. Sardar Ujjal
Singh disagreed with the suggestion that no time should be fixed for the next
meeting of the committee and suggested the end of March. Dr. S. P. Moo-
kerjee suggested that it would be best to have a general discussion straight¬
away and thereafter written memoranda could be sent in and discussed at
a subsequent meeting. Pandit Govind Ballabh Pant again stressed the need
for confining discussions to an informal basis and the danger of any group
committing itself in advance to particular proposals.
February 28, 1947
Present: (1) Dr. H. C. Mookherjee (Chairman); (2) The Hon’ble Shri Jagji-
van Ram; (3) The Hon’ble Maulana Abul Kalam Azad; (4) Dr. S. P. Moo-
kerjee; (5) Sardar Ujjal Singh; (6) Bakshi Sir Tek Chand; (7) Sir Homi Mody;
(8) Shri P. K. Salve; (9) Mr. S. H. Prater; (10) Mr. Frank R. Anthony; (11) The
Hon’ble Shri C. Rajagopalachari; (12) Rajkumari Amrit Kaur; (13) Shri
Jairamdas Daulatram; (14) Mr. R. K. Sidhwa; (IS) Mr. Rup Nath Brahma;
(16) Mr. M. V. H. Colins; (17) Mr. K. M. Munshi; (18) Dr. Alban D*Souza;
(19) The Hon’ble Pandit Govind Ballabh Pant; (20) Mr. P. R. Thakur; (21)
Mr. H. J. Khandekar.
Mr. Salve began by saying that in considering minority rights, they must
keep in mind the following consideration, namely, that these rights must
gradually disappear. It was not for the good of the country that minority
rights should be an inflexible feature of the constitution. He suggested that
certain broad heads under which the problem could be discussed should
be laid down by the sub-committee.
Mr. Prater suggested as a basis of discussion the following main issues:
(1) Fundamental rights peculiar to a community, for example, the right
of Sikhs to wear kirpans.
(2) Minority rights in relation to the Centre.
(3) Minority rights in relation to Provinces.
Under (2) and (3) questions such as franchise and representation could be
discussed.
26
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FRAMING OF INDIA'S CONSTITUTION
The Chairman suggested that the following may be added :
Rights in regard to places of worship, rights in regard to cemeteries and
rights in regard to education.
Mr. Munshi pleaded that a distinction must be made between fundamental
rights attributable to citizenship as such and therefore not peculiar to any
community and minority rights which apply only to particular communities.
The former come within the purview of the Sub-Committee on Fundamental
Rights. No doubt there would be a certain degree erf overlapping but these
could be discussed between the two committees. He agreed with Mr. Salve
that minority rights should not form a rigid part of the constitution and
they must gradually disappear.
Mr. Thakur suggested that a period should be fixed for which safeguards
are necessary.
Mr. Jagjivan Ram referred to the proposal that a questionnaire should
be prepared by Office. He thought it would be a waste of time for the
office to do so. There was already plenty of material available, for example,
the questionnaire of the Sapru Committee. He suggested that office should
send out a questionnaire based on the Sapru Committee questionnaire and
any other material that may be available and members of the committee
may send their replies by a particular date. In reply to Mr. Thakur’s sugges¬
tion, he said it was impossible to fix any particular date, as some communi¬
ties may require protection perpetually and others only for limited periods.
Mr. Frank Anthony and Mr. Sidhwa agreed with Mr. Jagjivan Ram.
Sardar Ujjal Singh expressed agreement with the views of Mr. Munshi.
Mr. Rajagopalachari said that their task was to consider what clauses
should be inserted in the new Constitution for the protection of minorities.
Some objections had been raised to office sending out a questionnaire.
He would suggest that the best procedure would be for members to examine
existing provisions in the Constitution Act for the protection of minorities
under various heads, such as education, franchise, service and so on, and to
state what provisions should be inserted in the new Constitution.
Pandit Govind Ballabh Pant argued that the stage has not yet been reached
for sending in written memoranda. He referred to the recent statement* of the
British Government and said that this had created an entirely new situation.
Minorities had hitherto relied directly or indirectly on the support of the
British. They could no longer do so. The British Government had in fact
altered their own view as regards the protection of minorities. In the past, they
had insisted that suitable provision for minority protection was a condition
precedent to the transfer of power. They have now agreed that power would
be transferred anyhow and that minorities must depend on the goodwill
of the majority. It was necessary, therefore, that the beaten track should
not be followed. His concrete suggestion was that office should correlate
•See Vol. I, Document No. 84{i).
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DECISIONS OF THE SUB-COMMITTEE ON MINORITIES
391
and classify all the information that was available, for example, minority
safeguards in different countries according to subjects and not merely
according to countries and draft a list of minority safeguards Which, in
their view, are required in India in the new setting. Thereafter, the sub¬
committee could meet and discuss this material. The danger of sending in
written memoranda was that they would be published in the press and
there would be undesirable publicity about all kinds of rival claims and
counter claims which would damage the interests of the country in the
particularly delicate stage through which it is passing at present.
Dr. D’Souza said that of the three different proposals which had been
made, namely, a questionnaire as suggested by Mr. Jagjivan Ram, an exami¬
nation of the existing provisions in the Constitution Act as suggested by
Mr. Rajagopalachari and a general discussion as suggested by Pandit Govind
Ballabh Pant on the basis of material collected by the office, he would
clearly prefer ihe one put forward by Mr. Jagjivan Ram. He did not think
that claims would be exaggerated in written memoranda.
Sir Homi Mody suggested that the questionnaire should be simple and
broad based. There was a serious danger in going into details. Members
would feel it necessary to answer all these detailed questions and this pro¬
cedure would give rise to a crop of exaggerated claims. While he agreed that
some rights have to be put into the Constitution Act and be sufficiently rigid
so as to offer real protection, he strongly opposed the conception of political
rights for minorities. What a minority required in the field of political rights
was equal opportunity fen - exercising them.
Dr. Syama Prasad Mookerjee agreed with the suggestion of Mr. Raja¬
gopalachari and said that he had a memorandum already teady on these lines.
He agreed with Sir Homi Mody that a detailed questionnaire was undesirable.
He suggested that the memorandum should be sent in before the 1st April.
Sardar Ujjal Singh claimed that a detailed questionnaire was necessary.
Mr. K. M. Munshi expressed complete agreement with Sir Homi Mody
and read out the following questionnaire :
(1) What should be the nature and scope of the safeguards for a
minority in the new Constitution?
(2) What should be the political safeguards of a minority (a) in the
Centre, (ft) in the Provinces?
(3) What should be the economic safeguards of a minority (a) in the
Centre, (b) in the Provinces?
(4) What should be the religious, educational and cultural safeguards
for a minority?
(5) What machinery should be set up to ensure that the safeguards are
effective?
(6) How is it proposed that the safeguards should be eliminated, in
what time and under what circumstances?
The committee accepted the questionnaire suggested by Mr. Munshi and
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decided that the memoranda should be sent in to the office not later than
the 31st March. Office would circulate these memoranda together with the
report of the Fundamental Rights Sub-Committee to the members of the
Minority Sub-Committee by the 8th of April and the next meeting of the
sub-committee should be held on the 17th of April.
The Chairman, in winding up, pleaded that minorities should no longer
look to an external authority to assist them. They should depend only on
the good sense of their own countrymen.
(n) SUMMARY OF THE DECISIONS TAKEN AT THE MEETINGS
July 21-25, 1947
The Minorities Sub-Committee of the Advisory Committee of the Cons¬
tituent Assembly of India met on the 21st July 1947 and subsequent days
to consider the following points arising out of the replies received to the
questionnaire issued to the members :
(1) representation in Legislatures; joint versus separate electorates and
weightage;
(2) reservation of seats in the Cabinet:
(3) reservation in services;
(4) administrative machinery to ensure protection of minority rights
(partly covered by making certain fundamental rights justiciable).
July 21, 1947
There was a general discussion on the various items of the agenda, but
no decisions were taken.
July 22, 1947
The sub-committee decided by a majority of 28 to 3 that there should be
no separate electorates for elections to the Legislatures. It was understood, in
arriving at this decision, that it was open to the sub-committee to decide
on any one of several methods of joint electorates that could be devised.
July 23, 1947
The sub-committee came to the following conclusions:
(a) that as a general principle there should be reservation of seats for
different recognised minorities in the various Legislatures. Out of the
26 members present 23 members favoured reservation while 3 were
against it.
(b) that the reservation should be for 10 years, the position to be recon¬
sidered at the end of that period.
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DECISIONS OP THE SUB-COMMITTEE ON MINORITIES
393
July 24, 1947
The sub-committee considered what minorities and in which Provinces
may be given the right of reserved seats. For this purpose, the recognised
minorities communities were considered in three groups as shown below:
A—Population less than £ per cent in the Indian Dominion,
omitting the Indian States
1. Anglo-Indians.
2. Parsecs.
3. Plains tribesmen in Assam.
B—Population not more than 1£ per cent
4. Indian Christians.
5. Sikhs.
C—Population exceeding 1$ per cent
6. Muslims.
7. Scheduled Castes.
Taking “A” group first, the sub-committee agreed that the Anglo-Indians
and Parsees should be given the right of reserved representation in the Centre.
The matter of the Plains tribesmen in Assam was decided to be left over for
discussion and decision in the Advisory Committee where it was expected
that the question of these tribesmen could be more fully considered.
July 25, 1947
The sub-committee started by examining the quantum of representation of
Anglo-Indians and the Parsees in the various Legislatures.
Sir Homi Mody advanced the claim of the Parsee community for adequate
representation in the Central and Provincial Legislatures but at the same
time he asked for some time to think over the two alternatives which, he
understood, were open to him. viz., reserved seats which would be both a
maximum and a minimum and no reserved seats and freedom to contest
any number of seats. While the committee was of the opinion that adequate
representation should be provided for the Parsees. it accepted Sir Homi Mody’s
request and left the matter over for decision by the Advisory Committee.
The sub-committee then examined the demand put forward by represen¬
tatives of the Anglo-Indian community but thought it advisable that the
question of both the minorities in ‘A’ group should be decided at the same
time by the same body, viz., the Advisory Committee to whom the matter
was decided to be referred.
The sub-committee then examined the position of the two minorities
in group (B).
The representatives of the Indian Christians stated that as far as their
community was concerned they did not like to stand in the way of nation¬
building. They were willing to accept reservations proportionate to
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FRAMING OF INDIA’S CONSTITUTION
their population in the Central Legislature and in the Provincial Legis¬
latures of Madras, Bombay, Assam and East Punjab. Tn the other Provinces,
they would have the liberty of seeking election from the general seats.
They made it plain, however, that if any weightage was given to any mino¬
rity in group ‘B’ or ‘C, they would demand similar weightage though, cm
principle, they were against weightage being given to any community. The
sub-committee accepted this position and decided to commend it to the
Advisory Committee. Rajkumari Amrit Kaur dissented from the views erf
the other Christian members as she was opposed both to reservation and
weightage.
In view of the peculiar and uncertain position of the East Punjab and the
position of the Sikhs, the sub-committee decided by a majority of votes
(15 to 4) that the question of their representation be referred to the Advisory
Committee.
The sub-committee decided by 9 to 4 votes that no weightage be given
to any minority in groups ‘B’ and ‘C.
Group ‘C: As it was explained that informal discussions were being held
outside the sub-committee in regard to Muslims, the sub-committee decided
to postpone the examination of their claims. At the request of Dr. Ambedkar,
it decided also to postpone consideration of the claims of the Scheduled Castes.
At the suggestion of Sir Homi Mody, the sub-committee directed the
office to include the population figures of the Parsee community in the
tabular statement compiled and circulated to the members.
The sub-committee took up consideration of item 2 of the agenda, viz-,
the reservation of seats in the Cabinet.
Chaudhari Khaliquzzaman’s proposition to postpone consideration of the
matter till the informal discussions, referred to in the above para, were
concluded was lost by 10 votes to 7.
Mr. K. M. Munshi moved—
(a) that in the opinion of the sub-committee, no statutory provision
should be made for reservation of seats for the minorities in Cabinets;
and
(b) that, in the opinion of the sub-committee, a convention on the
lines of paragraph VII* of the Instrument of Instructions issued to
the Governors of the various Provinces under the Government of
India Act, 1935, be provided in the Schedule to the Constitution.
•VH. In making appointments to his Council of Ministers our Governor shall
use his best endeavours to select his Ministers in the following manner, that is to say,
to appoint in consultation with the person who in his judgment is most likely to
command a stable majority in the legislature those persons (including so far as
practicable members of important minority communities) who will best be in a
position collectively to command the confidence of the legislature. In so acting, he
shall bear constantly in mind the need for fostering a sense of joint responsibility
among his Ministers.
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DECISIONS OF THE SUB-COMMITTEE ON MINORITIES
395
The sub-committee decided by 8 votes to 7 to adopt part (a) of Mr. Munshi’s
proposition.
Sir Homi Mody moved that the word ’important’ in the words within
brackets {see footnote below) be deleted. The sub-committee rejected the
amendment proposed by Sir Homi Mody by 9 to 8 votes.
The second part of Mr. Munshi’s proposition was then carried, 12 voting
for and 5 against it.
Mr. Khandekar asked that his minute of dissent on this item should be
included in the report.
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REPORT OF THE SUB-COMMITTEE ON MINORITIES
July 27, 1947
[The decisions reached at the meetings of the Subcommittee on
Minorities during its third sitting (see Document No. 9) were embodied
in the report of the sub-committee drafted and approved on the day
of its last sitting, Le. on July 27, 1947. It was submitted to the Advi¬
sory Committee on the same day. The text of the report and dissenting
notes from Rajkumari Amrit Kaur and H. J. Khandekar are reproduced
below.]
(i) REPORT OF THE SUB-COMMITTEE
July 27, 1947
The Minorities Sub-Committee of the Advisory Committee met every day
from the 21st of July to the 27th of July under the chairmanship of
Dr. H. C. Mookherjee. The agenda placed before the sub-committee on the
basis of the replies received to the questionnaire issued to the members
consisted of the following items :
(1) Representation in Legislatures, joint versus separate electorates and
weightage;
(2) Reservation of seats in the Cabinet;
(3) Reservation in services;
(4) Administrative machinery to ensure protection of minority rights
(partly covered by making certain fundamental rights justiciable).
2. The sub-committee held prolonged discussions on the various points
before them. It was not possible to arrive at unanimous decisions on any
point and the voting on several questions was very close. On some points,
the voting was equal and the Chairman considered that as the matters were
anyhow going to the Advisory Committee, it was pointless for him to exer¬
cise a casting vote. On some points, the sub-committee came to the con¬
clusion that a decision had best be deferred till the meeting of the full
Advisory Committee. In view of the shortness of time available for prepar¬
ing this report, it is not possible to indicate the arguments used in the
course of discussion. This report contains merely a bare summary of the
conclusions readied by the sub-committee and it is hoped that this will be
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REPORT OF THE SUB-COMMITTEE ON MINORITIES
397
found adequate by the Advisory Committee.
3. Representation in Legislatures: (1) The sub-committee decided by a
majority of 28 to 3 that there should be no separate electorates for elec¬
tions to the Legislatures. It was understood, in arriving at this decision, that
it was open to the subcommittee to decide on any one of several methods
of joint electorates that could be devised.
(2) As a general principle, there should be reservation of seats for diffe¬
rent recognised minorities in the various Legislatures. This was carried by
a majority of 26 to 3.
The reservation shall be for 10 years, the position to be reconsidered at
the end of that period.
(3) The sub-committee considered what minorities and in which Provinces
may be given the right of reserved seats. For this purpose, the recognised
minority communities were considered in three groups as shown below:
A—Population less than i per cent in the Indian Dominion omitting States
1. Anglo-Indians.
2. Parsees.
3. Plains tribesmen in Assam.
B—Population not more than 1£ per cent
4. Indian Christians.
5. Sikhs.
C—Population exceeding 1$ per cent
6. Muslims.
7. Scheduled Castes.
(4) Sir Homi Mody advanced the claim of his community for adequate
representation in the Central and Provincial Legislatures. While the com¬
mittee was of opinion that adequate representation should be provided for
in response to this claim, it welcomed Sir Homi’s request to have more
time to think over the matter and therefore the matter was left over for
decision by the Advisory Committee.
(3) The sub-committee then examined the demand put forward by
representatives of the Anglo-Indian community but thought it advisable
that the question at both the minorities in ‘A’ group should be decided at the
same time by the same body, viz., the Advisory Committee to whom the
matter was decided to be referred.
(6) The representatives of the Indian Christians stated that so far as
their community was concerned they did not like to stand in the way of
nation-building. They were willing to accept reservations proportionate to
their population in the Central Legislature and in the Provincial Legislatures
of Madras, Bombay, Assam and East Punjab. In the other Provinces, they
would have the liberty of seeking election from the general seats. They
made it plain, however, that if any weightage was given to any minority
in groups ‘B* and ‘C, they would demand similar weightage though, on
principle, they were against weightage being given to any community. The
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FRAMING OF INDIA’S CONSTITUTION
sub-committee accepted this position and decided to commend it to the
Advisory Committee. Rajkumari Amrit Kaur dissented from the views of the
other Christian members as she was opposed both to reservation and
weightage for any community. A copy of her minute of dissent
is attached.
(7) In view of the peculiar and uncertain position of the East Punjab and
the position of the Sikhs, the sub-committee decided by a majority of votes
(15 to 4) that the question of their representation be referred to the Advisory
Committee.
(8) The sub-committee decided by 9 to 4 votes that no weightage be
given to any minority in groups ‘B’ and ‘C.
(9) It was decided by a majority of 8 to 2 that cumulative voting should
not be permissible.
(10) The committee examined the proposal that a minority candidate
standing for election for a reserved seat should poll a minimum number of
votes of his community before he is declared elected. 7 members of the
subcommittee voted for this proposal and 7 against it, and it was decided
to refer it to the Advisory Committee.
(11) It was proposed that members of a minority community who have
reserved seats should have the right to contest unreserved seats as well.
This was accepted by the sub-committee in the case of both the Scheduled
Castes and other minorities.
Mr. Thakur Das Bhargava made the point and the sub-committee agreed
that the position of the communities in East Punjab is so balanced that
the whole question of East Punjab should be considered in the Advisory
Committee independently erf the decisions of the sub-committee.
(12) Dr. Ambedkar suggested that candidates of a majority community
should, before being declared elected, poll a minimum number of votes
from among voters of the minority communities in their constituencies.
This was lost by a large majority, only Dr. Ambedkar voting for it.
4. Reservation of seats in the Cabinet: The sub-committee considered
that (a) no statutory provision should be made for reservation of seats for
the minorities in Cabinets and that (b) a convention on the lines of para¬
graph VII* of the Instrument of Instructions issued to Governors of Provinces
under the Government of India Act, 1935, be provided in a schedule to the
Constitution.
The first proposition was carried by 8 votes to 7 and the second by 12
votes to 5.
A proposal to delete the words “important” in paragraph VII of the
Instrument of Instructions was lost by 9 votes to 8.
Mr. Khandekar has submitted a minute of dissent a copy of which is
attached to the report.
*Vide p. 397 footnote.
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REPORT OF THE SUB-COMMITTBB ON MINORITIES
399
5. Reservation in Services: (1) The sub-committee voted on the general
proposition that there shall be reservation in the public services for the
different com m unities mentioned in groups A, B and C of paragraph
3(3).
It was agreed that the provisions, if any, regarding reservations should
appear in a schedule to the Constitution Act and should have the force of
a directive of Government policy. The decisions were as follows:
(i) Agreed by a majority of votes (16 to 1) that there shall be reserva¬
tion in the services for the Scheduled Castes.
(ii) Agreed by a majority of votes (9 to 7) that there shall be reservation
in the services for Muslims.
(iii) Agreed by a majority of votes (6 to 1) that there shall be reserva¬
tion in the services for Sikhs.
(iv) Agreed by a majority of votes (12 to 1) that there shall be reserva¬
tion in the services for Mains tribes in Assam.
(v) Agreed by a majority of votes (12 to 3) that there shall be reserva¬
tion in the services for Anglo-Indians.
Note : The Parsees and the Indian Christians did not ask for reservation
in services.
(2) Mr. Ali Zaheer moved the following resolution:
This committee recommends that in the Provincial as well as Central
services, the claims of all the minorities should be kept in view in making
. appointments to such services consistently with the consideration of effi¬
ciency of administration. The committee further recommends that suitable
provision to this effect may be embodied in some form in the Constitu¬
tion or in some other way.
When this proposition was put before the sub-committee, Chaudhari
Khaliquzzaman raised the point that the proposition was out of order in
view of the decision already taken in para 5(1) above. The Chairman did
not accept this view.
Nine members voted for Mr. Ali Zaheer’s proposition and 9 against
(3) The sub-committee then considered the question as to whether seats
should be reserved even for posts for which competitive examinations are
held. The decisions were as follows:
(i) Agreed by a majority of votes (11 to 6) that there should be reserva¬
tion for Scheduled Castes in services to which recruitment was made
by competitive examination.
(ii) Decided by a majority of votes (8 to 7) that there should be no such
reservation for Muslims, Sikhs and tribesmen.
Note: Anglo-Indians did not want reservation in services of this cate¬
gory. Parsees and Indian Christians did not want reservation in any
services, whether filled by competition or otherwise.
(4) Chaudhari Khaliquzzaman, before these proposals were put to vote,
raised a point of order that as the sub-committee had already decided on
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FRAMING OF INDIA’S CONSTITUTION
reservation in the services for certain communities in unqualified terms, it
was not in order now to break up the proposition into compartments and
vote cm each of them separately. The Chairman did not accept this view
on the ground that it had from the very beginning been understood that
these matters would be considered separately. On this ruling being given,
Ch. Khaliquzzaman and the Hon’ble Mr. Ismail Chundrigar abstained from
taking part in the voting on the above propositions.
Subsequently, Maulana Hifzur Rahman also raised the same point of
order, and the Chairman again ruled it out.
(S) The next question examined was on what basis reservation should be
made in those cases in which the committee had decided in favour of
reservation. It was proposed that reservation should be on the basis of
population. This was rejected by the subcommittee by a majority of
9 to 8 votes.
6. Item (4) of the Agenda: (1) There were four proposals before the sub¬
committee as regards the administrative machinery to ensure protection
of minority rights. Mr. Khandekar moved a proposal for a Minority Com¬
mission whose findings should be mandatory on Government. This was lost
by a large majority. Mr. Anthony proposed a Minority Commission with
the right only to make a report This also was lost. Dr. Ambedkar suggested
that there should be an independent officer appointed by the President at
the Centre and by the Governors in the Provinces to report to the Union
and Provincial Legislatures respectively about the working of the safeguards
provided for the minorities. This was acoepted by a majority of 16 to 2 votes.
The proposal that the officer should be independent of the executive like
the Auditor-General or the judge of a High Court was negatived by a
majority of 9 to 6. In view of the voting on this proposal of Dr. Ambedkar
there was no voting on Mr. C. Rajagopalachari’s proposal that a sub¬
committee of the Legislature ooncemed, together with an adequate secretariat
staff, should be charged with preparing a report for submission to the
Legislature.
(2) Mr. Munshi proposed and the sub-committee agreed that there should
be provision for the setting up of a statutory commission to investigate into
the conditions of socially and educationally backward classes, to study the
difficulties under which they laboured and to recommend to the Union or
the unit Government, as the case may be, the steps that should be taken
to eliminate these difficulties and the financial grants that should be given
and the conditions that should be prescribed for such grants.
(n) MINUTE OF DISSENT BY H. J. KHANDEKAR
July 25, 1947
I herewith submit my note of dissent on the majority decision of the
committee today against statutory provisions bring made for reservation
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REPORT OF THE SUB-COMMITTEE ON MINORITIES
401
of seats in the Central and Provincial Cabinets for the minorities in India.
2. The Scheduled Castes are a major minority. But they have numerous
difficulties in all walks of life. They are still untouchables and have no
place in the hearts of the vast majority of the Caste Hindus. I am fully
aware of the fact that the Constituent Assembly has passed a clause
declaring that untouchability shall be an offence in India but I have to
point out that this clause, for a long time to come, will only be declara¬
tory and not mandatory. It has always been the experience in the past
that the case of the Harijans was neglected when their interests clashed
with those of the Caste Hindus. It cannot therefore be safely expected
that in all spheres of life and particularly in the matter of sharing power,
justice will be done to the Scheduled Castes. My community has experien¬
ces in the past of the unfair treatment in matter of formation of Minis¬
tries and my people fear that such treatment will be repeated. Under
the illustrious leadership of Mahatma Gandhi, those in authority now are
no doubt recognising the claims of the Scheduled Castes but there is no
guarantee that when conditions change the same sympathy and considera¬
tions will be forthcoming for the Harijans. If at any time in the future
the Scheduled Castes find that there is a distinct change in the outlook
and the attitude of the Caste Hindus towards them and that untouch¬
ability is removed root and branch, so much so that not even the very men¬
tion of caste will not be allowed in society, the Scheduled Castes will be
gladly prepared to give up these concessions which they now demand for
their protection.
3. The condition of other minorities is quite different from that of the
Scheduled Castes. The case of the Scheduled Castes should not be weighed
with the same standard as that of other minorities.
4. I, therefore, request you to pass this note on to the Advisory Com¬
mittee and to the Constituent Assembly so that the case of the Scheduled
Castes may be considered as a special case by these bodies; by giving
statutory reservations to Scheduled Castes in both the Cabinets.
(m) MINUTE OF DISSENT BY RAJKUMARI AMRIT KAUR
July 27, 1947
I wish to record my dissent cm the decisions taken by this committee
in the matter of reservation of seats in Legislatures and in the services.
2. I have always held that anything in the nature of privileges for any
special class or section of society is wrong in principle and when the same
is given on the ground of religion it is, in my opinion, doubly wrong, for
all religions stand for the brotherhood of man and none for separatism.
Moreover, to perpetuate any such privilege in the Constitution of a free
India would be against the ideals for which the Indian Union stands pledged
to work, namely a classless society where there shall be no high nor low.
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FRAMING OF INDIA'S CONSTITUTION
no rich nor poor, and would also keep alive the flame of communalism which
is destroying the very fabric of our national life.
3. I question the legal existence of the depressed classes the moment
the new Constitution comes in. Once untouchability is abolished and its
practice made a criminal offence who are the Scheduled Castes? They
have always been and will now, I submit, become legally one with most
of the backward and ignorant poor Hindus of this country. They need
straightaway all the necessary facilities and opportunities for raising their
standards of education and life in general.
4. No minority will get facilities and opportunities of service through
reservation of seats for a handful of their representatives in Legislatures or
the services. If such are conceded by statute they will not only further
weaken the community concerned but will also lower the standards of
efficiency and good governance.
5. I am of opinion that in the new set-up a new spirit has to be brought
in. Old policies which have tended to accentuate the communal problems
must be abandoned. Palliatives and expedients are no remedies. The
minorities should on the one hand realise that they cannot exist except on
the basis of the goodwill of the majority community and on the other
the latter should so model their conduct as always to prefer them to
themselves, merit and character being equal, and thus prove that there are
no majorities and minorities in the State.
6. In my opinion the minorities should create that goodwill by rely¬
ing on the good sense and spirit of fellowship in the majority community
and thereby banish the doubts, fears and suspicions which exist in the
minds of the minorities today. Public Service Commissions in every Pro¬
vince and the minority officer recommended by this committee at the Centre
should be sufficient to safeguard their just rights and protect their interests.
All else will not only not protect but will in the long run be harmful.
7. The field of service in India is very wide. All the manpower of the
country has to be harnessed for service in nation-building activities.
There can be no unemployment for anyone and I hold that it is through
the service of the masses alone that every individual and community will
fin d itself and merge into the larger whole.
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MINUTES OF THE MEETINGS OF THE ADVISORY
COMMITTEE
July 28-31, 1947
[The report of the Minorities Sub-Committee came up for consideration
before the Advisory Committee on July 28, 1947. The discussion lasted
four days . The committee endorsed almost all the conclusions reached
by the sub-committee. However, it appointed a sub-committee to
report on the position of Anglo-Indians in certain services and the
existing educational facilities for them. The minutes of the meetings of
the Advisory Committee are reproduced below.]
July 28, 1947
Present: (1) Shri Jairamdas Daulatram; (2) The Hon’ble Shri Mehr-
chand Khanna; (3) Shri Rrithvi Singh Azad; (4) Shri Dharam Prakash;
(5) Shri H. J. Khandekar; (6) Shri P. R. Thakur; (7) Dr. B. R. Ambedkar;
(8) Shri V. I. Muniswami Pillai; (9) Sardar Pratap Singh; (10) The Hon’ble
Sardar Baldev Singh); (11) Sardar Jogendar Singh ; (12) Sardar Ujjal Singh ;
(13) Dr. H. C. Mookherjee; (14) Dr. Alban D’Souza; (15) Shri P. K. Salve;
(16) Mr. S. H. Prater; (17) Mr. Frank Reginald Anthony; (18) Mr. M. V. H.
Collins; (19) Sir Homi Mody; (20) Shri M. R. Masani; (21) Shri R. K. Sidhwa;
(22) Shri Rupnath Brahma; (23) Khan Abdul Samad Khan; (24) The
Hon’ble Rev. J. J. M. Nichols-Roy; (25) Shri Phool Bhan Shah; (26) Shri
Devendra Nath Samanta; (27) Shri Jaipal Singh; (28) The Hon’ble
Maulana Abul Kalam Azad; (29) The Hon’ble Sardar Vallabhbhai Patel,
(Chairman); (30) The Hon’ble Shri C. Rajagopalachari; (31) Rajkumari
Amrit Kaur; (32) Shrimati Hansa Mehta; (33) The Hon’ble Govind Bal-
labh Pant; (34) The Hon’ble Shri Gopinath Bardoloi; (36) The Hon’ble
Shri Purshottamdas Tandon; (36) Sir Alladi Krishnaswami Ayyar;
(37) Shri K. T. Shah; (38) Shri K. M. Munshi; (39) Mr. Amritlal V. Thak-
kar; (40) Mr. M. Ruthnaswamy; (41) Mr. Raj Krushna Bose; (42) Sardar
K. M. Panikkar; (43) Mr. Hifzur Rehman; (44) S. Ali Zaheer; (45) Hon’ble
Mr. Abdul Quiyum Ansari; (46) Chaudhari Khaliquzzaman; (47) Seth
Govindi Das; (48) Saiyid Jafar Imam; (49) Haji Abdul Sathar Haji Ishaq
Sait; (50) The Hon’ble Maharajadhiraja Sir Kameshwara Singh of
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FRAMING OF INDIA’S CONSTITUTION
Darbhaiiga; (51) Mr. N. Madhava Rau; (52) Mr. Mohaa Singh Mehta; (53)
Shri M. S. Aney; (54) Darbar Gopaldas Desai; (55) Mr. Gokulbhai Bhatt;
(56) Mr. K. Chengalroya Reddy; (57) Pandit Thakur Das Bhaigava.
The committee agreed to a suggestion that the report of the Minorities
Sub-Committee may first be taken up.
2. Mr. Munshi proposed that there should be no separate electorates for
elections to the Legislatures. This motion was carried by a large majority,
only three members voting against it.
3. Chaudhari Khaliquzzaman suggested that before proceeding with the
other recommendations of the Minorities Sub-Committee, in so far as they
affected the Muslim League, he would suggest an alternative procedure.
He proposed that a committee should be set up consisting of three or four
members only of the majority community and who are in a position
either by themselves or in consultation with the Congress High Command
to speak authoritatively. This committee should hear the claims erf other
minorities separately. This was a far better procedure than the one adopted
in the Minorities Sub-Committtee. For his part, he would be prepared to
consider the committee so formed as a tribunal. After considerable discussion,
this proposal was put to the vote and lost by a large majority.
4. Mr. Munshi moved that as a general principle there should be reserva¬
tion of seats for different recognised minorities in the various Legislatures.
To this Mr. Masani moved the following amendment :
That the representation of minorities, whether political or communal, be
secured not by reservation of seats but by a system of proportional re¬
presentation preferably of cumulative voting in multi-member constitu¬
encies.
After discussion, the amendment was put to the vote and lost, only three
members voting for it. Mr. Munshi’s proposition was carried.
Mr. Munshi moved that the reservation shall be for 10 years, the posi¬
tion to be reconsidered at the end of the period. Mr. Sidhwa moved that
the clause should read as follows: “The reservation shall be only for 10
years.”
This was lost by a large majority and the original proposition was car¬
ried.
5. Paragraph 3(3) of the Minorities Sub-Committee’s report was taken up
and there was considerable discussion on item 3 in group ‘A* namely. Plains
tribesmen in Assam. Some members proposed that tribesmen living in plains
in other Provinces should also be recognised as distinct minorities. It was
decided by the committee to leave the clause as it is on the understanding
that the question of tribesmen living in the plains in other provinces would
be taken up on the recommendation of fhe Excluded and Partially
Excluded Areas Sub-Committee.
6. Sir Homi Mody asked time till tomorrow to discuss the question of
Parsees.
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MINUTES OF THE MEETING OF THB ADVISORY COMMITTEE
403
7. Mr. Prater moved that Anglo-Indians should have the following seats
in the Legislature :
House of the People.3
West Bengal.3
Bombay.2
Madras.2
Central Provinces.1
Bihar.1
United Provinces.1
Mr. Munshi moved the following amendment:
The following seats shall be reserved for the Anglo-Indians: House of
the People 2 and one seat each in Bengal, Bombay and Madras or, if
the Anglo-Indian representatives in the committee preferred, they could
allocate these three seats among Provinces as they chose.
Pandit Govind Ballabh Pant moved the following further amendment :
There shall be no reservation of seats for the minorities in the ‘A’ group
but the President of the Union and the Governors of Provinces shall have
power to nominate representatives of such of smaller minorities as hap¬
pen not to find representation in the Legislature as a result of the gene¬
ral election.
Discussion to continue.
July 29, 1947
Present: (1) Shri Jairamdas Daulatram; (2) Shri Prithvi Singh Azad;
(3) Shri H. J. Khandekar; (4) Shri P. R. Thakur; (5) Dr. B. R. Ambedkar;
(6) Shri V. I. Muniswami Fillai; (7) Sardar Jogendar Singh; (8) The
Hon’ble Sardar Baldev Singh; (9) Sardar Pratap Singh; (10) Dr. H. C.
Mookherjee; (11) Dr. Alban D’Souza; (12) Shri P. K. Salve; (13) Mr. S. H.
Prater; (14) Mr. Frank Reginald Anthony; (15) Mr. M. V. H. Collins;
(16) Sir Homi Mody; (17) Shri M. R. Masani; (18) Shri R. K. Sidhwa;
(19) Shri Rup Nath Brahma; (20) The Hon’ble Rev. J. J. M. Nichols-Roy;
(21) Shri Phool Bhan Shah; (22) Shri Devendra Nath Samanta; (23) Shri
Jaipal Singh; (24) The Hon’ble Maulana Abul Kalam Azad ; (25) The
Hon’ble Sardar Vallabhbhai Patel, (Chairman)-, (26) Rajkumari Amrit
Kaur; (27) Shrimati Hansa Mehta; (28) The Hon’ble Pandit Govind
Ballabh Pant; (29) The Hon’ble Shri Gopinath Barddoi; (30) The Hon’ble
Shri Purshottamdas Tandon; (31) Shri K. T. Shah; (32) Shri K. M.
Munshi; (33) Mr. Amritlal V. Thakkar; (34) Mr. M. Ruthnaswamy;
(35) Mr. Raj Krushna Bose; (36) Sardar K. M. Panikkar; (37) Mr. Hifzur
Rehman; (38) S. AK Zaheer; (39) Hon’ble Mr. Abdul Quiyum Ansari;
(40) Chaudhari Khaliquzzaman; (41) Saiyid Jafar Imam ; (42) Haji Abdul
Sathar Haji Ishaq Sait; (43) Mr. Madhava Rau; (44) Mr. Mohan Singh
Mehta; (45) Shri M. S. Aney; (46) Mr. Gokulbhai Bhatt; (47) Mr. K.
Chengalroya Reddy; (48) Seth Govind Das; (49) Pt. Thakur Das Bhargava.
27
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FRAMING OF INDIA’S CONSTITUTION
The minutes of the meeting held on July 28 were confirmed.
2. The Chairman, after hearing the Chairman of the North East Frontier
Tribal Areas and Assam Excluded and Partially Excluded Areas Sub-
Committee (Mr. Bardoloi) and the Chairman of the Excluded and Partially
Excluded Area (Other than Assam) Sub-Committee (Mr. A. V. Thakkar),
the Hon’ble Rev. J. J. M Nichols-Roy and Mr. Jaipal Singh, ruled that
the two committees should hold a joint sitting after their reports were ready
and then submit a consolidated report to the Advisory Committee. As
the Excluded and Partially Excluded Areas Sub-Committee was unlikely
to complete its final report before the end of August 1947 this might mean
that the Advisory Committee would not be able to take up the joint
report before the end of the next session of the Assembly.
3. After this, the discussion on the question of Anglo-Indian representa¬
tion in the Central and Provincial Legislatures was continued. In substitu¬
tion of the motion moved by Mr. Prater yesterday, Mr. Anthony, on behalf
of the Anglo-Indian representatives, moved the following resolution,
namely,
that Anglo-Indians be guaranteed two seats in the House of the People
and one in each Province in which they have representation at present (6).
The Anglo-Indians would contest elections through the general constitu¬
encies but where they fail to secure the above representation in the general
election, the guaranteed seais should be secured to them by nomination by
the President or the Governor as the case may be to the Lower House.
After considerable discussion. Pandit Pant redrafted the amendment
which he moved yesterday as follows :
There shall be no reservation of seats for the Anglo-Indians, but the
President of the Union and the Governors of Provinces shall have power
to nominate representatives of this minority in the Centre and in the Pro¬
vinces respectively if they fail to secure representation in the Legislatures as
a result of the general election.
Pandit Pant’s motion was accepted unanimously.
4. Sir Homi Mody withdrew the claim of the Parsec community for
statutory reservation on the understanding that Parsees would remain on
the list of recognised minorities and that, if it was found that they had not
secured proper representation, their claim for reservation would be recon¬
sidered at the end of the period prescribed for special representation of
minorities. The House agreed to the inclusion in the report to be submitted
to the Assembly of a draft submitted by Sir Homi Mody as reproduced in
the Appendix.
5. The committtee then took up paragraph 3(11) of the Minorities Sub¬
committee’s report. After considerable discussion, the recommendation of
the sub-committee was put to the vote separately as regards Scheduled
Castes and other minorities and was accepted in both cases by a large
majority.
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MINUTES OF THE MEETING OF THE ADVISORY COMMITTEE
407
APPENDIX
In the Minorities Sub-Committee, Sir Homi Mody had urged that in view of the
importance of the Parsee community and the contribution it had been making to
the political and economic advancement of the country Parsees should have adequate
representation in the Central and Provincial Legislatures. The sub-committee was
of opinion that this claim should be conceded. In view, however, of the opinion
expressed to him by several members that an advanced community like the Parsees
would be adequately represented in any event and did not need specific reservation.
Sir Homi Mody had asked for time to consider the matter.
When the issue came before the Advisory Committee, Sir Homi stated that
though the committee had already accepted the Parsee community as a recognised
minority entitled to special consideration on the same basis as other minorities in
group A, he had decided to follow the traditions which the community had maintained
in the past and to withdraw the claim for statutory reservation. He assumed that
Parsees would remain on the list of recognised minorities and urged that if, during
the period prescribed in the first instance for the special representation of the
minorities, it was found that the Parsee community had not secured proper representa¬
tion, its claim be reconsidered and adequate representation provided, if the separate
representation of minorities continued to be a feature of the Constitution. The
committee appreciated the stand taken by Sir Homi and agreed to his proposal.
July 30, 1947
Present: (1) The Hon’ble Sardar Vallabhbhai Patel, {Chairman); (2) Shri
Prithvi Singh Azad; (3) Shri Dharaxn Prakash; (4) Shri H. J. Khandekar;
(5) Shri P. R. Thakur; (6) Dr, B. R. Ambedkar; (7) Shri V. I. Muniswami
Pillai; (8) Sardar Jogendar Singh; (9) The Hon’ble Sardar Baldev Singh;
(10) Sardar Pratap Singh ; (11) Dr. H. C. Mookherjee; (12) Shri P. K. Salve;
(13) Mr. S. H. Prater; (14) Frank Reginald Anthony; (15) Mr. M. V. H.
Collins; (16) Sir Homi Mody; (17) Shri M. R. Masani; (18) Shri R. K.
Sidhwa; (19) Shri Rup Nath Brahma; (20) Shri Phool Bhan Shah; (21) Shri
Devendar Nath Samanta; (22) Shri Jaipal Singh; (23) The Hon’ble Maulana
Abul Kalam Azad; (24) Shri Jairamdas Daulatram; (25) Rajkumari Amrit
Kaur; (26) Shrimati Hansa Mehta ; (27) The Hon’ble Pandit Govind
Ballabh Pant; (28) The Hon’ble Shri Gopinath Bardoioi; (29) The Hon’ble
Shri Purshottamdas Tandon; (30) Shri K. T. Shah ; (31) Shri K. M. Munshi;
(32) Shri Amritlal V. Thakkar; (33) Mr. M. Ruthnaswamy; (34) Mr. Raj
Krushna Bose; (35) Mr. Hifzur Rehman; (36) S. Ali Zaheer; (37) The
Hon’ble Mr. Abul Quiyum Ansari; (38) Chaudhuri Khaliquzzaman;
(39) Haji Abul Sathar Haji Ishaq Sait; (40) The Hon’ble Maharajadhiraja
Sir Kameshwara Singh of Darbhanga; (41) Mr. Mohan Singh Mehta;
(42) Mr. M. S. Aney; (43) Darbar Gopaldas Desai; (44) Mr. Gokulbhai
Bhatt; (45) Mr. K. Chengalroya Reddy; (46) Seth Govind Das; (47) Pandit
Thakur Das Bhargava.
The minutes of yesterday’s meeting were approved.
2. Mr. Munshi moved that reservation proportionate to their population
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FRAMING OF INDIA’S CONSTITUTION
should be accorded to the Indian Christians in the Central Legislature and
in the Provincial Legislatures of Madras and Bombay. The question of
reservation in the East Punjab would be considered later. In other
Provinces. Indian Christians would have the liberty of seeking election from
the general seats. If any weightage was given to any minority in groups
‘B’ and ‘C, they would demand similar weightage though, on principle,
they were against weightage being given to any community.
Mr. Munshi added that Assam was dropped from the recommendation
for reservation because Mr. Nichols-Roy had written to him to the effect
that Christians of Assam did not want any reservation. If reservation was
given to them, the Christians there would actually be the losers as they
have now a larger number of representatives than on the population
basis.
Mr. Munshi’s proposition was carried. Rajkumari Amrit Kaur and
Mr. Thakurdas Bhargava were the only members who opposed it; they
objected in principle to reservation for any community.
3. The question of East Punjab and the whole question of the rights
to be accorded to the Sikh community woe decided to be postponed.
4. Mr. Munshi moved that no weightage be given to Indian Christians,
the Muslims and the Scheduled Castes. This was accepted by the
committee.
5. Mr. Munshi moved that cumulative voting should not be permissible
in elections to Legislatures. To this Mr. Masani moved the following
amendment, namely, “that no decision be recorded on this resolution and
that the matter of cumulative or distributive voting be determined when the
demarcation of constituencies and the electoral law are decided”. Mr.
Masani’s amendment was lost by an overwhelming majority and Mr.
Munshi’s proposal carried.
6. Mr. Munshi moved that it should not be stipulated that a minority
candidate standing for election for a reserved seat should poll a minimum
number of votes of his community before he is declared elected. After
considerable discussion, this resolution was carried by a large majority.
7. Dr. Ambedkar withdrew the proposal that he had made in the sub¬
committee and referred to in paragraph 3(12) of the subcommittee’s
report.
8. Mr. Munshi moved that (a) no statutory provision should be made
for reservation of seats for the minorities in Cabinets and that (b) a con*
vention on the lines of paragraph VII of the Instrument of Instructions
issued to Governors under the Government of India Act, 1935, be provided
in a Schedule to the Constitution. At the suggestion of Mr. Khandekar who
wanted reservation for the Scheduled Castes, the first proposition was put to
the vote separately in respect of Scheduled Castes and other minorities.
In both cases, Mr. Munshi’s proposition was carried by a large majority.
Proposition (b) was also carried.
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MINUTES OF THE MEETING OF THB ADVISORY COMMITTEE
409
9. Mr. Ali Zaheer moved the following resolution :
This committee recommends that in the Provincial as well as Central
services, the claims of all the minorities should be kept in view in making
appointments to such services consistently with the consideration of effi¬
ciency of administration. The committee further recommends that suit¬
able provision to this effect may be embodied in some form in the Con¬
stitution or in some other way.
Discussion on this resolution was postponed till tomorrow.
July 31, 1947
Present: The 11001)16 Sardar Vallabhbhai Patel, 0 Chairman );
(2) Shri Jairamdas Daulatram; (3) Shri Prithvi Singh Azad; (4) Shri
Dharam Prakash ; (5) Shri H. J. Khandekar; (6) Shri P. R. Thakur; (7) Dr.
B. R. Ambedkar; (8) Shri V. I. Muniswami Pillai; (9) The Hon’ble Sardar
Baldev Singh; (10) Sardar Pratap Singh; (11) Dr. H. C. Mookherjee;
(12) Shri P. K. Salve; (13) Mr. S. H. Prater; (14) Mr. Frank Reginald
Anthony; (15) M.V.H. Collins; (16) Shri R. K. Sidhwa; (17) Khan Abdul
Samad Khan; (18) Shri Phool Bhan Shah; (19) Shri Devendra Nath
Samanta; (20) Shri Jaipal Singh; (21) The Hon’ble Maulana Abul Kalam
Azad; (22) Rajkumari Amrit Kaur; (23) The Hon’ble Shri Purshottamdas
Tandon; (24) Shri K. M. Munshi; (25) Shri Amritlal V. Thakkar; (26) Mr.
M. Ruthnaswamy; (27) Mr. Raj Krushna Bose; (28) Mr. Hifzur Rehman;
(29) Hoo’ble Mr. Abdul Quiyum Ansari; (30) Chaudhari Khaliquzzaman;
(31) Mr. Mohan Singh Mehta; (32) Shri M. S. Aney; (33) Mr. Gokulbhai
Bhatt; (34) Mr. K. Chengalroya Reddy ; (35) Seth Govind Das ; (36) Pandit
Thakur Das Bhargava.
The minutes of yesterday’s meeting were confirmed.
2. Mr. Muniswami Pillai moved the following amendment to Syed Ali
Zaheer’s resolution, namely, that the words “consistently with the considera¬
tion of efficiency of administration” be deleted. Chaudhari Khaliquzzaman
moved the amendment that seats should be reserved in the public services
for minorities on the population basis. Dr. Ambedkar asked that the case
of the Scheduled Castes may be treated separately. So far as they were
concerned, he moved that seats should be reserved for them on the popula¬
tion basis. Subject to this he was prepared to accept Syed Ali Zaheer’s
resolution. Mr. Anthony moved the following amendment :
Owing to the complete dependence of die economy of the Anglo-Indian
community on their position in certain services and their existing education¬
al facilities, a sub-committee consisting of the following members be ap¬
pointed to submit a report: Pandit Pant, Mr. Munshi, Mrs. Hansa Mehta,
Mr. Prater, and Mr. Anthony.
After discussion, the amendments were put to the vote and lost with the
exception of Mr. Anthony’s which was carried. Syed Ali Zaheer’s original
resolution was also carried.
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FRAMING OF INDIA’S CONSTITUTION
3. Mr. Munshi moved that an officer should be appointed by the President
at the Centre and by the Governors in the Provinces to report to the Union
and Provincial Legislatures respectively about the working of the safeguards
provided for the minorities. This was carried.
4. Mr. Munshi moved a proposition in terms of paragraph 7 of the
Minorities Sub-Committee’s report This was carried.
5. The committee considered the letter of Maulana Hifzur Rehman and
Mr. Ansari and came to the conclusion that these were matters properly
to be dealt with by legislation and not to be provided for in the Constitution.
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REPORTS ON MINORITY RIGHTS
August 1947
[The Advisory Committee submitted its report on the subject of
minority rights to the President of the Constituent Assembly on August 8,
1947. The Sub-Committee on Anglo-Indians appointed by the Advi¬
sory Committee at its meeting held on July 31, 1947 (sec Document
No. 11) reported to the Advisory Committee on August, 22. The
findings of the sub-committee were accepted by the Advisory Com¬
mittee and a supplementary report on the subject was submitted on
August 25. The reports of the Advisory Committee on Minority Rights
and on Anglo-Indians were discussed by the Constituent Assembly on
August 27 and 28. The Advisory Committee and the Assembly decided
subsequently in May, 1949, to abolish all reservations for religious
minorities, and to retain reservations only for the Scheduled Castes and
Scheduled Tribes (see Vol. IV). The texts of the reports, Paters speech
moving the Committee's reports in the Constituent Assembly and the
clauses as adopted by the Assembly are reproduced below.)
(i) REPORT OF THE ADVISORY COMMITTEE ON THE SUBJECT OF
MINORITY RIGHTS
August 8, 1947
From
The Hon’ble Sardar Vallabhbhai Patel.
Chairman, Advisory Committee on Minorities,
Fundamental Rights, etc.
To
The President.
Constituent Assembly of India.
Dbar Sot,
On behalf of the members of the Advisory Committee appointed by the
Constituent Assembly on the 24th January 1947 and subsequently nominated
by you, I have the honour to submit this report on minority rights. It
should be treated as supplementary to the one forwarded to you with my
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FRAMING OF INDIA’S CONSTITUTION
letter No.* CA/24/Com./47, dated the 23rd April 1947 and dealt with by
the Assembly during the April session. That report dealt with justiciable
fundamental rights; these rights, whether applicable to all citizens generally
or to members of minority communities in particular offer a most valuable
safeguard for minorities over a comprehensive field of social life. The
present report deals with what may broadly be described as political safe¬
guards of minorities and covers the following points :
(i) Representation in Legislatures; joint versus separate electorates;
and weightage.
(ii) Reservation of seats for minorities in Cabinets.
(iii) Reservation for minorities in the public services.
(iv) Administrative machinery to ensure protection of minority rights.
2. Our recommendations are based on exhaustive discussion both in the
Sub-Committee on Minorities as well as in the main Advisory Committee.
From the very nature of things, it was difficult to expect complete unanimity
on all points. I have pleasure in informing you, however, that our recom¬
mendations. where they were not unanimous, woe taken by very large
majorities composed substantially of members belonging to minority com¬
munities themselves.
joint versus separate electorates and weightage
3. The first question we tackled was that of separate electorates; we
considered this as being of crucial importance both to the minorities them¬
selves and to the political life of the country as a whole. By an over¬
whelming majority, we came to the conclusion that the system of separate
electorates must be abolished in the new Constitution. In our judgment,
this system has in the past sharpened communal differences to a dangerous
extent and has proved one of the main stumbling blocks to the development
of a healthy national life. It seems specially necessary to avoid these
dangers in the new political conditions that have developed in the country
and from this point of view the arguments against separate electorates
seem to us absolutely decisive.
4. We recommend accordingly that all elections to the Central and
Provincial Legislatures should be held on the basis of joint electorates.
In order that minorities may not feel apprehensive about the effect of a
system of unrestricted joint electorates on the quantum of their representa¬
tion in the legislature, we recommend as a general rule that seats for the
different recognized minorities shall be reserved in the various legislatures
on the basis of their population. This reservation should be initially for a
period of 10 years, the position to be reconsidered at the end of that period.
We recommend also that the members of a minority community who have
•See Document No. 7.
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REPORTS ON MINORITY RIGHTS
413
reserved seats shall have the right to contest unreserved seats as well. As
a matter of general principle, we are opposed to weightage for any minority
community.
3. For two reasons the application of the above principles to specific
minorities was considered in detail by the committee. In the first place,
it was known to us that minorities are by no means unanimous as to the
necessity, in their own interests, of statutory reservation of seats in the
legislatures. Secondly, the strict application of the above principles to a
microscopic minority like the Anglo-Indians seemed to require very careful
examination. We accordingly classified minorities into three groups—
group ‘A’ consisting of those with a population of less than 1/2 per cent
in the Indian Dominion excluding the States, group ‘B’ consisting of those
with a population of more than 1 /2 per cent but not exceeding 1$ per cent
and group ‘C consisting of minorities with a population exceeding 1£ per
cent. These three groups are as follows:
Group A. —Anglo-Indians, Parsecs, and Plains tribesmen in Assam.
Group B .—Indian Christians and Sikhs.
Group C .—Muslims and Scheduled Castes.
6. Anglo-Indians: The population of the Anglo-Indian community
excluding the States is just over a lakh, that is, 0.04 per cent
Mr. Anthony, on behalf of the Anglo-Indians, contended that the
census figures were inaccurate but even admitting a larger figure than the
one given in the census, this community is microscopic, and to deal with it
on a strictly population basis would mean giving it no representation
at all. The representatives of the Anglo-Indians on the committee asked
originally that they should have the following
Legislatures:
representation in the
House of the People ....
3
West Bengal . . . . .
3
Bombay.
2
Madras ......
2
Central Provinces and Berar
1
Bihar.
1
United Provinces ....
1
Subsequently they asked that they should be guaranteed two seats in the
House of the People and one in each Province in which they have represen-
tation at present, that is, a total of 8 altogether.
After very considerable
discussion, in the course of which the representatives of the Anglo-Indian
community gave full expression to their views, the committee unanimously
accepted the following formula, namely, that there shall be no reservation
of seats for the Anglo-Indians but the President of the Union and the
Governors of the Provinces shall have power to nominate representatives
of the Anglo-Indian community to the Lower House in the Centre and in the
Provinces respectively if they fail to secure representation in the legislatures
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FRAMING OF INDIA’S CONSTITUTION
as a result of the general election. We wish to congratulate the representatives
of the Anglo-Indian community on the committee for not pressing
their proposals which would not merely have introduced the principle of
special weightage which was turned down as a general proposition by an
overwhelming majority but would also have encouraged other small mino¬
rities to ask for representation wholly out of proportion to their numbers.
We feel sure that by the operation of the formula recommended by us
Anglo-Indians will find themselves given adequate opportunity effectively
to represent in the legislatures the special interests of their community.
7. Parsees: In the Minorities Sub-Committee, Sir Homi Mody had urged
that in view of the importance of the Parsee community and the contribution
it had been making to the political and economic advancement of the
country Parsees should have adequate representation in the Central and
Provincial Legislatures. The sub-committee were of opinion that this
claim should be conceded. In view, however, of the opinion expressed to
him by several members that an advanced community like the Parsees
would be adequately represented in any event and did not need specific
reservation. Sir Homi had asked for time to consider the matter.
When the issue came before the Advisory Committee, Sir Homi stated
that though the committee had already accepted the Parsee community as
a recognized minority entitled to special consideration on the same basis as
other minorities in group A, he had decided to follow the traditions which
the community had maintained in the past and to withdraw the claim for
statutory reservation. He assumed that Parsees would remain on the list
of recognized minorities and urged that if. during the period prescribed in
the first instance for the special representation of the minorities it was
found that the Parsee community had not secured proper representation,
its claim would be reconsidered and adequate representation provided, if
the separate representation of minorities continued to be a feature of the
Constitution. The committee appreciated the stand taken by Sir Homi
and agreed to his proposal.
8. Plains tribesmen in Assam: The case of these tribesmen will be taken
up after the report of the Excluded and Partially Excluded Areas Sub-
Committee is received.
9. Indian Christians: The representatives of the Indian Christians stated
that, so far as their community was concerned, they did not desire to stand
in the way of nation-building. They were willing to accept reservation
proportionate to their population in the Central Legislature and in the
Provincial Legislatures of Madras and Bombay. In the other Provinces,
they would have the liberty of seeking election from the general seat. They
were against any weightage being given to any community, but made it
plain that if weightage was given to any minority in groups ‘B* and *C\
they would demand similar weightage. As weightage is not bang con¬
ceded to any community, this means that the Indian Christians are prepared
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REPORTS ON MINORITY RIGHTS
415
to throw in their lot with the general community subject only to the reserva¬
tion of certain seats for them on the population basis in the Central Legisla¬
ture and in Madras and Bombay.
10. Sikhs: In view of the uncertainty of the position of the Sikhs at
present pending the award of the Boundary Commission in the Punjab, the
committee decided that the whole question of the safeguards for the Sikh
community should be held over for the present.
11. Group C—Muslims and Scheduled Castes: The committee came to
the conclusion that there are no adequate grounds for departing from
the general formula in the case either of the Muslims or of the Scheduled
Castes. Accordingly it is recommended that seats be reserved for these
communities in proportion to their population and that these seats shall be
contested through joint electorates.
12. A proposal was made in the committee that a member of the minority
community contesting a reserved seat should poll a minimum number of
votes of his own community before he is declared elected. It was also
suggested that cumulative voting should be permitted. The committee was
of the view that a combination of cumulative voting and a minimum per¬
centage of votes to be polled in a community would have all the evil effects
of separate electorates and that neither of these proposals should be
accepted.
REPRESENTATION OF MINORITIES IN CABINETS
13. Some members of committee proposed that there should be a provision
prescribing that minorities shall have reserved for them seats in Cabinets
in proportion to their population. The committee came unhesitatingly
to the conclusion that a constitutional provision of this character would
give rise to serious difficulties. At the same time, the committee felt that
the Constitution should specifically draw the attention of the President of
the Union and the Governors of Provinces to the desirability of including
members of important minority communities in Cabinets as far as practica¬
ble. We recommend accordingly that a convention shall be provided in a
Schedule to the Constitution on the lines of paragraph VII of the Instru¬
ment of Instructions issued to Governors under the Act of 1935 and
reproduced below:
VII. In making appointments to his Council of Ministers, our Governor
shall use bis best endeavours to select his Ministers in the following man¬
ner, that is to say, to appoint in consultation with the person who in his
judgment is most likely to command a stable majority in the legislature
those persons (including so far as practicable members of important mino¬
rity communities) who will best be in a position collectively to command
the confidence of the legislature. In so acting, he shall bear constantly
in mind the need for fostering a sense of joint responsibility among his
Ministers.
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FRAMING OF INDIA’S CONSTITUTION
REPRESENTATION IN SERVICES
14. A proposal was made to us that there should be a constitutional
guarantee of representation in the public services of the minority commu¬
nities in proportion to their population. We are not aware of any other
constitution in which such a guarantee exists, and, on merits, we consider,
as a general proposition that any such guarantee would be a dangerous
innovation. At the same time, it is clear to us that consistently with the
need of efficiency in administration, it is necessary for the State to pay due
regard to the claims of minorities in making appointments to public services.
We recommend, therefore, that, as in the case of appointments to Cabinets,
there should be in some part of the Constitution or the Schedule an ex*
hortation to the Central and Provincial Governments to keep in view the
claims of all the minorities in making appointments to public services con*
sistently with the efficiency of administration.
The Anglo-Indian members of our committee have represented to us
that owing to the complete dependence of the economy of their community
op their position in certain services and their existing educational facilities,
their case require special treatment. We have appointed a sub-committee
to investigate this question and to report to us.
15. The minorities’ representatives in the committee naturally attached
importance to the provision of administrative machinery for ensuring that
the guarantees and safeguards provided for the minorities both in the Consti¬
tution and by executive orders are in fact implemented in practice. After
considerable discussion, we have come to the conclusion that the best
arrangement would be for the Centre and for each of the Provinces to appoint
a special Minority Officer whose duty will be to enquire into cases in which
it is alleged that rights and safeguards have been infringed and to submit
a report to the appropriate legislature.
16. We have felt bound to reject some of the proposals placed before
us partly because, as in the case of reservation of seats in Cabinets, we
felt that a rigid constitutional provision would have made parliamentary
democracy unworkable and partly because, as in the case of the electoral
arrangements, we considered it necessary to harmonize the special claims
of minorities with the development of a healthy national life. We wish to
make it clear, however, that our general approach to the whole problem of
minorities is that the State should be so run that they should stop feeling
oppressed by the mere feet that they are minorities and that, on die contrary,
they should feel that they have sis honourable a part to play in the national
life as any other section of the community. In particular, we think it is
a fundamental duty of the State to take specisd steps to bring up those
minorities which are backward to the level of the general community. We
recommend accordingly that a Statutory Commission should be set up to
investigate into the conditions of socially and educationally backward
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REPORTS ON MINORITY RIGHTS
417
classes, to study the difficulties undo: which they labour and to recommend
to the Union or the unit Governments as the case may be, the steps that
should be taken to eliminate their difficulties and, suggest the financial
grants that should be given and the conditions that should be prescribed
for such grants.
17. A summary of our recommendations is attached in the Appendix.
Vallabhbhai Patel
Chairman .
APPENDIX
REPRESENTATION IN LEGISLATURES
1. Electorates: All elections to the Central and Provincial Legislatures will be
held on the basis of joint electorate:
Provided that as a general rule, there shall be reservation of seats for the
minorities shown in the schedule in the various legislatures on the basis of their
population:
Provided further that such reservation shall be for 10 years, the position to be
reconsidered at the end of the period.
Schedule
Group A : Population less than i per cent in the Indian Dominion, omitting
States.
1. Anglo-Indians.
2. Parsees.
3. Plains tribesmen in Assam.
Group B: Population not more than li per cent.
4. Indian Christians.
5. Sikhs.
Group C: Population exceeding 1± per cent
6. Muslims.
7. Scheduled Castes.
2. (a) Anglo-Indians: There shall be no reservation of seats for the Anglo-
Indians, but the President of the Union and the Governors of Provinces shall have
power to nominate their representatives in the Centre and the Provinces respectively
if they fail to secure adequate representation in the legislatures as a result of the
general election.
(b) Parsees: There shall be no statutory reservation in favour of the Parsee
community, but they would continue to remain on the list of recognized minorities:
Provided that if as a result of elections during the period prescribed in proviso
2 to para 1 above it was found that the Parsee community had not secured proper
representation, their claim for reserved seats would be reconsidered and adequate
representation provided should the separate representation of minorities continue to
be a feature of the Constitution.
Note: The above recommendations represent the view taken by the representatives
of the Parsee community.
3. (a) Indian Christians: There shall be reserved representation for Indian
Christians in proportion to their population in the Central Legislature and in the
Provincial Legislatures of Madras and Bombay. In other Provinces, they will have
the right to seek election from the general seats.
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FRAMING OF INDIA'S CONSTITUTION
(b) Sikhs: The question of minority rights for the Sikhs will be considered
separately.
(c) Muslims and Scheduled Castes: There shall be reservation of seats for the
Muslims and Scheduled Castes in the Central and Provincial Legislatures on the basis
of their population.
4. Additional right to minorities: The members of a minority community who
have reserved seats shall have the right to contest unreserved seats as well.
5. No weight age: The minorities for whom representation has been reserved will
be allotted seats on their population ratio, and there shall be no weightage for any
community.
6. No condition for a minimum number of votes of one’s own community: There
shall be no stipulation that a minority candidate standing for election for a reserved
seat shall poll a minimum number of votes of his own community before he is
declared elected.
7. Method of voting: There may be plural member constituencies but cumulative
voting shall not be permissible.
Representation of Minorities in Cabinets
8. No reservation for minorities: (a) There shall be no statutory reservation of
seats for the minorities in Cabinets but a convention on the lines of paragraph VII**
of the Instrument of Instructions issued to Governors under the Government of
India Act, 1935 shall be provided in Schedule to the Constitution.
**VII. In making appointments to his Council of Ministers our Governor shall
use his best endeavours to select his Ministers in the following manner, that
is to say, to appoint in consultation with the person who in his judgment is
most likely to command a stable majority in the legislature those persons
(including so far as practicable members of important minority communities)
who will best be in position collectively to command the confidence of the
legislature. In so acting, he shall bear constantly in mind the need for fostering
a sense of joint responsibility among his Ministers.
Recruitment in Services
9. Due share to all minorities guaranteed: In the all-India and Provincial Services,
the claims of all the minorities shall be kept in view in making appointments to these
services consistently with the consideration of efficiency of administration.
Note: Appropriate provision shall be embodied in the Constitution or a schedule
thereto to this effect
10. Position of Anglo-Indian community: Owing to the complete dependence of
the economy of the Anglo-Indian community on their position in certain services and
their existing educational facilities, a sub-committee consisting of the following
members has been appointed to submit a report: (1) Pandit G. B. Pant,
(2) Mr. K. M. Munshi, (3) Mrs. Hansa Mehta, (4) Mr. S. H. Prater, and (5) Mr. F.
R. Anthony.
Working of Safeguards
11. Officer to be appointed: An officer shall be appointed by the President at
the Centre and by the Governors in the Provinces to report to the Union and
Provincial Legislatures respectively about the working of the safeguards provided for
the minorities.
12. Statutory Commission for backward classes: Provision shall also be made for
the setting up of a Statutory Commission to investigate into the conditions of socially
and educationally backward classes, to study the difficulties under which they labour
and to recommend to the Union or the unit Government, as the case may be,
the steps that should be taken to eliminate the difficulties and the financial
grants that should be given and the conditions that should be prescribed for such
grants.
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(fl) REPORT OF THE SUB-COMMITTEE ON THE POSITION TO BE
ACCORDED TO ANGLO-INDIANS IN SERVICES AND IN THE
EDUCATIONAL SYSTEM
August 22, 1947
To
The Chairman of the Advisory Committee,
Sir,
The Advisory Committee at its meeting on the 31st July 1947 decided
that:
Owing to the complete dependance of the economy of the Anglo-Indian
community on their position in certain services and their existing educational
facilities, a sub-committee consisting of the following members be appoint¬
ed to submit a report—(1) Pandit G. B. Pant, (2) Mr. K. M. Munshi, (3)
Mrs. Hansa Mehta, (4) Mr. S. H. Prater, and (5) Mr. F. R. Anthony.
2. We (all except Pandit Pant who was absent from Delhi) met on the
20th and 21st August 1947. Our unanimous recommendations on both the
points referred to us are :
(a) Position of Anglo-Indians in certain services
We find that owing to their past history and the then prevailing cir¬
cumstances, the whole economy of this community is at present
dependent on finding employment in certain types of posts in the
Railways, the Posts & Telegraphs and the Customs Departments.
A recent survey conducted by the Provincial Board for Anglo-
Indian Education in Bombay showed that 76 per cent of the em¬
ployable section of the community were dependent for their liveli¬
hood there on these appointments. We believe that the position is
almost the same all over India; the total number of Anglo-Indians
at present employed in these three departments being about 15,000.
The special reservation given to them in the Government erf India Act
1935 does not however extend to all the categories of posts in these
departments, but only in those with which they have had long past
associations. In view of this we feel that if the existing safeguards
in this regard are not continued in some form for some years to
come, the community will be subjected to a sudden economic strain
which it may not be able to bear as it will not have time to prepare
itself for it. We therefore recommend that :
(i) The present basis of recruitment of Anglo-Indians in the Rail¬
ways, the Posts & Telegraphs and the Customs Departments shall
continue unchanged for a period of two years after the coming
into operation of the Federal Constitution. After that, at intervals
of every two years, the reserved vacancies shall be reduced each
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FRAMING OF INDIA’S CONSTITUTION
time by 10 per cent. This shall not however bar the recruitment
erf Anglo-Indians in the categories of posts in which at present
they have reserved places over and above the prescribed quota of
reserved appointments, if. they are able to secure them on indivi¬
dual merit in open competition with other communities. It shall
also in no way prejudice their recruitment on merit to posts in
these departments, or any others in which they have not been given
a reserved quota.
(ii) After a period of ten years from the date of the coming into
operation of the Federal Constitution all such reservations shall
cease.
(iii) In these services there shall be no reservation for any community
after the lapse of 10 years.
(b) Special educational facilities for Anglo-Indians
There are at present about 500 Anglo-Indian schools in India. The
total Government grant to these schools is about Rs. 45 lakhs, being
approximately 24 per cent erf the expenditure incurred by the schools.
We feel that a sudden reduction in the grant will seriously dislocate
the economy of these schools; and that it would only be fair to
bring them gradually into line with other similar educational insti¬
tutions after giving them sufficient time and opportunity to adjust
themselves to the altered conditions now prevailing in the country.
We also feel that in this way these institutions might become a
valuable educational asset which would cater to the growing educa¬
tional needs of the whole nation and not only to those of the Anglo-
Indian community. We accordingly recommend that :
(i) the present grants to Anglo-Indian education made by the Central
and Provincial Governments should be continued unchanged for
three years after the coming into operation of the Federal
Constitution.
(ii) After the expiry of the first three years, the grants may be re¬
duced by 10 per cent and by a further 10 per cent after the 6th
vear. At the end of the period of 10 years the portion of the
grant to these schools shall be reviewed by the appropriate
authorities:
Provided that in the ten years of its currency the grant shall not
be reduced to a figure which would make the per capita amount
available to an Anglo-Indian school less than the per capita
amount granted by the Government concerned to any other similar
school.
(iii) During this ten-year period, 40 per cent of the vacancies in all
such state aided Anglo-Indian schools shall be made available
to members of other communities.
3. (a) The term “similar school” shall mean a school of a similar
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REPORTS ON MINORITY RIGHTS
421
standard and age in a similar locality but shall not include special or new
schools.
(b) The term ‘Anglo-Indian’ used in this report has the meaning given
to it in the Government of India Act, 1935.
4. Pandit G. B. Pant has seen our report, and accepts our findings.
K. M. Munshi
Chairman of the Sub-Committee
(m) SUPPLEMENTARY REPORT OF THE ADVISORY COMMITTEE ON
THE POSITION OF ANGLO-INDIANS
August 25, 1947
From
Sardar Vallabhbhai Patel.
Chairman,
Advisory Committee on Minorities.
Fundamental Rights etc.
To
The President,
Constituent Assembly of India.
Sot,
I have the honour to refer to paragraph 14 of my letter No. CA/24/
Com/47, dated the 8th August and to submit this supplementary report on
the position of Anglo-Indians in certain services and the grant of special
educational facilities for them. This report is based on a consideration of
the findings of a sub-committee appointed by us.
(a) Position of Anglo-Indians in certain services
We find that, as a result of historical circumstances the whole economy
of this community is at present dependent on finding employment in certain
types of posts in the Railways, the Posts & Telegraphs and the Customs
Departments. A recent survey conducted by the Provincial Board for
Anglo-Indian Education in Bombay showed that 76 per cent of the employ¬
able section of the community there were dependent for their livelihood on
these appointments. We believe that the position is almost the same all
over India; the total number of Anglo-Indians at present employed in these
three departments being about 15,000. The special reservation given to
them in the Government erf India Act, 1935, does not however extend to
all the categories of posts in these departments, but only in those with which
they have had long past associations. In view of this we feel that if the
existing safeguards in this regard are not continued in some form
for some years to come, the community will be subjected to a sudden
28
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FRAMING OF INDIA'S CONSTITUTION
economic strain which it may not be able to bear. We therefore recommend
that:
(i) The present basis of recruitment of Anglo-Indians in the Railways, the
Posts & Telegraphs and the Customs Departments shall continue unchang¬
ed for a period of two years after the coming into operation of the Fede¬
ral Constitution. After that, at intervals of every two years the reserved
vacancies shall be reduced each time by 10 per cent. This shall not how¬
ever bar the recruitment of Anglo-Indians in the categories of posts in
which at present they have reserved places over and above the prescrib¬
ed quota of reserved appointments, if they are able to secure them on indi¬
vidual merit in open competition with other communities. It shall also
in no way prejudice their recruitment on merit to posts in these
departments, or any other in which they have not been given a reserved
quota.
(ii) After a period of ten years from the date of the coming into operation
of the Federal Constitution all such reservations shall cease.
(iii) In these services there shall be no reservation for any community
after the lapse of 10 years.
(ft) Special educational facilities for Anglo-Indians
There are at present about 500 Anglo-Indian schools in India. The
total Government grant to these schools is about Rs. 45 lakhs being
approximately 24 per cent of the expenditure incurred by the schools. We
feel that a sudden reduction in the grant will seriously dislocate the eco¬
nomy of these schools; and that it would only be fair to bring them
gradually into line with other similar educational institutions after giving
them sufficient time and opportunity to adjust themselves to the altered
conditions now prevailing in the country. We also feel that in this way these
institutions might become a valuable educational asset which would cater
to the growing educational needs of the whole nation and not only to
those of the Anglo-Indian community. We accordingly recommend
that:
(i) the present grants to Anglo-Indian education made by the Central and
Provincial Governments should be continued unchanged for three years
after coming into operation of the Federal Constitution.
(ii) After the expiry of the first three years, the grants may be reduced
by 10 per cent and by a further 10 per cent after the sixth year and again
by a further 10 per cent after the ninth year. At the end of the period
of 10 years, special concessions to Anglo-Indian schools shall cease.
(iii) During this 10 years period, 40 per cent of the vacancies in all such
State aided Anglo-Indian schools shall be made available to members of
other communities.
The term 'Anglo-Indian* used in this report has the meaning given to
it in the Government of India Act, 1935.
Vallabhbhai Patel
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(IV) PATBL’S SPEECH MOVING THE REPORT FOR CONSIDERATION*
August 27, 1947
Sir, on behalf of the Advisory Committee I beg leave to place this Report
on Minority Rights before the House. It has been drafted after considering
the report of the Minority Committee and after considering all the points
raised with regard to the safeguards for different minorities in this country.
You all know that the question of safeguards for minorities has been dis¬
cussed several times and considered in various committees, and there is
no new point to be discussed. In one committee or other for several years
past this question has been discussed, sometimes very minutely, some¬
times generally. Sometimes its discussion has taken an acute
form and sometimes it has resulted in a bitter controversy. But I am
happy to say that this report has been the result of a general con¬
sensus of opinion between the minorities themselves and the majority.
Therefore, although it is not possible to satisfy all, you will see that
this report has been the result of agreement on many points : and
wherever there has been disagreement the recommendations have been
carried by a very large majority, so that except perhaps on one point the
report is practically an agreed report. It may be that there are some who
are not satisfied on some points, but we have to take into consideration all
points of view and feelings and sentiments of the minorities, big and small.
We have tried as far as possible to meet the wishes of all the minorities.
The minorities among themselves are also divided; there are conflicting
interests among them. We have not tried to take advantage of these dif¬
ferences among the minorities themselves: we have tried to see that the
minorities also instead of being divided among themselves try to present
a united front in order to safeguard their interests. But there are certain
points on which the minorities cannot be united because there are minorities
within minorities. So it is a difficult proposition. We have tried to solve this
difficult problem without any bitterness and without any controversy which
would create any ill-feeling or hitch; and I hope that this House also will
be able to dispose of this question in a friendly spirit and in an atmosphere
of goodwill. Let us hope that we will leave the legacy of bitterness behind
and forget the past and begin with a clean slate, TTiere is much that is
happening round us which requires us to dispose of our business as quickly
as possible; and we should do nothing in this House which will add to our
difficulties or to the difficulties of our neighbours who are at present in¬
volved in bitter strife and when our hearts are bleeding with the wounds
that are being inflicted on one erf our best Provinces in India. Therefore
I trust that in this House in considering this question which affects all the
minorities we will introduce no heat or argument which may lead to such
*C. A. Deb. Vol. V, pp. 212-215.
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FRAMING OF INDIA’S CONSTITUTION
controversy as would have a repercussion outside. I hope that we shall be
able to dispose of this matter quickly and in a friendly spirit.
You will remember that we passed the Fundamental Rights Committee’s
Report which was sent by the Advisory Committee; the major part of those
rights has been disposed of and accepted by this House. They cover
a very wide range of the rights erf minorities which give them ample protec*
tion ; and yet there are certain political safeguards which have got to be spe¬
cifically considered. An attempt has been made in this report to enumerate
those safeguards which are matters of common knowledge, such as repre¬
sentation in legislatures, that is, joint versus separate electorates. This is
the question which has raised controversy for almost a decade and we
have suffered and paid heavily for it. But fortunately we have been able
to deal with this question in such a manner that there has been unanimity
on the point that there should be no more separate electorates and we
should have joint electorates hereafter. So that is a great gain.
TTien again on the question of weightage we have agreed that there
should be no weightage and with joint electorates the communities should be
represented according to the proportion of their population. Then we
have thought fit to agree to reservation in proportion to the population
of the minorities. Some ef the minorities gladly surrendered that right
and said that they wanted neither weightage nor separate electorates but
in the general upheaval that is taking place they want to merge themselves
in the nation and stand on their own legs. I congratulate those who have
taken that stand but I also sympathise with those who still want some
help to come up to the standard which we all expect of the nation. We haw
now also decided that in the public services a certain amount of reservation
for certain communities is necessary—particularly the Anglo-Indian com¬
munity and the Scheduled Castes in certain respects deserve special consi¬
deration. We have made recommendations in this respect. I am glad to
say that in this matter also there is unanimity between us and the com¬
munities whose interests are affected.
Then we have also provided for some sort of administrative machinery
to see that whatever safeguards are provided are given effect to, so that
it may not be felt by the communities concerned that these are paper
safeguards. There should be continuous vigilance and watch kept over
the safeguards that have been provided in the working of the Government
machinery in different Provinces, and it shall be the business of the officer
or administrative machinery concerned to bring to the notice of the legisla¬
tures or the Governments the defects or drawbacks in the protection of the
rights of minority communities.
We have divided the minorities according to their strength or according
to their population. In the Schedule the three parts are set out and dealt
with separately because they require separate consideration in proportion
to their strength.
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REPORTS ON MINORITY RIGHTS
425
The Anglo-Indians have special rights or rather special privileges or
special concessions which they have been enjoying in certain types of ser¬
vices, such as the railways and some one or two other services. Now,
suddenly to withdraw these concessions and to ask them to abandon these
claims or these concessions and to stand with the general standard would
put them perhaps in a difficult position. They may not be prepared for
that at present and it is better that we give them time for adjustment.
They now know that they have to prepare themselves for this. They have
ample notice and I am glad to say that they have agreed that they take
this notice. The gradual reduction of these concessions has been agreed
to by them. Similar concessions have been given to them in the matter of
education. In certain educational institutions they get special grants. These
educational institutions are open also to students of other communities,
but they are generally meant for the Anglo-Indian community and they
get certain concessions in the matter of financial assistance. It is proposed
to continue this assistance for some time and by a process of gradual
reduction to prepare them for a stage when they can be prepared to come
to the general level of the other, communities and to share the financial
burdens, obligations and difficulties. So there also we have solved this
problem by agreement
Then about representation in the legislatures. In their case it is difficult,
it is a small community of a lakh of people or more, but very substantially
small, spread all over India and not located in a particular Province. It
is difficult for them to get seats in a general election. Therefore, if they
fail in getting representation by the normal process of election in some
Provinces or in the Centre, provision has been made for their being nomi¬
nated, if they are not properly or adequately represented, and that power
of nomination is given to the Governor or the President as the case
may be.
Then in other cases, that of the Parsees, they have themselves voluntarily
abandoned any concessions that may be given to them and wisely they
have done so. Besides, it is well-known that though small, it is a very
powerful community and perhaps very wise. They know that any con¬
cessions that they may get would perhaps do more harm to them than any
good, because they can make their way anywhere, and make their way
in such a manner that they would get more than they would get by any
reservation or by any separate process erf elections. Either in the legisla¬
tures or in the services, they stand so high in the general standard of the
nation that they have disclaimed any concessions and I congratulate them
on their decision.
Then comes the Christian community. This community is more populous
in two or three Provinces; and in other Provinces they are not so located
as to have any direct representation by the process of election. Still they
have agreed to have reservation according to their population and to
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FRAMING OF INDIA’S CONSTITUTION
abandon the claim for separate electorate; there is no other safeguard
that they have claimed.
We have, so far as the Cabinet representation is concerned also adopted
the formula that exists today in the 1935 Act which is considered consti¬
tutionally proper and, therefore, it has also been accepted unanimously.
Then comes representation in the services. The general standard that
we have accepted is that ordinarily competitive posts must go by merit and
if we are to depart from this, the general administration would suffer
immensely. It is well-known that since this departure has been introduced
in the matter of services our administration has suffered considerably. Now
that we begin afresh, we must see that where we have to fill some admini¬
strative posts of a higher level, these posts have to be filled by competition,
ije., by competitive examinations and competitive tests. We have made
some concessions in the matter of certain communities which require a
little help.
On the whole, this report is the result of careful sifting of facts on both
sides.
One thing I wish to point out Apart from representation in the Legisla¬
tures and the reservation of seats according to population, a provision has
been made allowing the minorities to contest any general seat also. There
was much controversy about it both in the Advisory Committee and in
the Minorities Committee; but it has been passed by a majority. There
was also another point which was a matter erf controversy, and that was
on behalf of the Muslim League and a section of the Scheduled Castes.
The point was raised that a certain percentage of votes should be considered
necessary for a successful candidate. This was a matter of controversy
and amongst the Scheduled Castes themselves a very large majority sent
me a representation yesterday saying they were against this. But in the
Advisory Committee it was discussed and it was thrown out by a large
majority.
Now, this is in substance the report But it is possible that when we
take the Schedule item by item, it may be necessary to modify the report as
and when the items are considered and passed. Therefore, as the President
has urged, we may take the Schedule item by item and the report may be
modified accordingly as and when the items are passed.
(V) CLAUSES ON MINORITIES AS ADOPTED BY THE
CONSTITUENT ASSEMBLY
August 1947
REPRESENTATION IN LEGISLATURES
1. Electorates: All elections to the Central and Provincial Legislatures
will be held on the basis of joint electorates:
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427
Provided that, as a general rule, there shall be reservation of seats for
the minorities shown in the Schedule and the section of the Hindu commu¬
nity referred to in paragraph 1-A hereof in the various Provincial Legisla¬
tive Assemblies on the basis of their population:
Provided further that such reservation shall be for 10 years, the position
to be reconsidered at the end of the period.
Schedule
Group A. —Population less than £ per cent, in the Indian Dominion,
omitting Indian States.
1. Anglo-Indians.
2. Parsees.
3. Plains tribesmen in Assam, other than tea garden tribes.
Group B .—Population not more than If per cent.
4. Indian Christians.
5. Sikhs.
Group C. —Population exceeding 1J per cent.
6. Muslims.
1-A. The section of the Hindu community referred to as Scheduled Castes
as defined in Schedule I to the Government of India Act, 1935. shall have
the same rights and benefits which are herein provided for minorities speci¬
fied in the Schedule to paragraph 1.
2. (a) Anglo-Indians: There shall be no reservation of seats for the Anglo-
Indians, but the President of the Union and the Governors of Provinces
shall have power to nominate their representatives in the Centre and the
Provinces respectively if they fail to secure adequate representation in the
legislatures as a result of the general election.
(b ) Parsees: There shall be no statutory reservation in favour of the
Parsee community, but they would continue to remain on the list of recog¬
nized minorities:
Provided that if as a result of elections during the period prescribed in
proviso 2 to para 1 above it was found that the Parsee community had
not secured proper representation, their claim for reserved seats would be
reconsidered and adequate representation provided should be separate
representation of minorities continue to be a feature of the Consti¬
tution.
Note: The above recommendations represent the view taken by the representatives
of the Parsee community.
3. (a) Indian Christians: There shall be reserved representation for Indian
Christians in proportion to their population in the Central Legislature and
in the Provincial Legislatures of Madras and Bombay. In other Provinces,
they will have the right to seek election from the general seats.
(b) East Punjab: In view of the special situation of East Punjab, the
whole question relating to it will be considered later.
(c) Muslims: There shall be reservation of seats for the Muslims in the
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FRAMING OF INDIA’S CONSTITUTION
Lower Houses of the Central and Provincial Legislatures on the basis of
their population.
3-A. The section of the Hindu community referred to as Scheduled
Castes as defined in Schedule I to the Government of India Act. 1935, shall
have the same rights and benefits which are herein provided for the minority
community specified in paragraph 3(c).
4. Additional right to minorities : The members of a minority community
who have reserved seats shall have the right to contest unreserved seats as
well.
In view of the special situation of West Bengal, the question relating to
it will be considered later.
5. No weightage: The minorities for whom representation has been re¬
served will be allotted seats on their population ratio, and there shall be
no weightage for any community.
6. No condition for a minimum number of votes of one’s own commu¬
nity: There shall be no stipulation that a minority candidate standing
for election for a reserved seat shall poll a minimum number of votes of
his own community before he is declared elected.
7. Method of voting: There may be plural member constituencies, but the
voting shall be distributive, that is, each voter will have as many votes
as there are members and he should give only one vote to a candi¬
date.
REPRESENTATION OF MINORITIES IN CABINETS
8. No reservation for minorities: There shall be no statutory reservation erf
seats for the minorities in Cabinets but a convention on the lines of para¬
graph VII of the Instrument of Instructions (reproduced below) issued to
Governors under the Government of India Act, 1935, shall be provided in
a Schedule to the Constitution.
VII. In making appointments to his Council of Ministers our Governor
shall use his best endeavours to select his Ministers in the following man¬
ner, that is to say, to appoint in consultation with the person who in his
judgment is most likely to command a stable majority in the legislature those
persons (including so far as practicable members of important minority
communities) who will best be in a position collectively to command the
confidence of the legislature. In so acting, he shall bear constantly in
mind the need for fostering a sense of joint responsibility among his Mini¬
sters.
RECRUITMENT IN SERVICES
9. Due share to aH minorities guaranteed: In the all-India and Provin¬
cial Services, the c laims of all the minorities shall be kept in view in
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REPORTS ON MINORITY RIGHTS
429
making appointments to these services consistently with the consideration of
efficiency of administration.
{Note: Appropriate provision shall be embodied in the Constitution or a Sche¬
dule thereto to this effect)
10. (a) Position of Anglo-Indian community: (i) The present basis of
recruitment of Anglo-Indians in the Railways, the Posts and Telegraphs and
the Customs Departments shall continue unchanged for a period of two years
after the coming into operation of the Federal Constitution. After that,
at intervals erf every two years, the reserved vacancies shall be reduced each
time by 10 per cent. This shall not however bar the recruitment of Anglo-
Indians in the categories of posts in which at present they have reserved
places over and above the prescribed quota of reserved appointments, if they
are able to secure them on individual merit in open competition with other
communities. It shall also in no way prejudice their recruitment on merit
to posts in these departments, or any other in which they have not been
given a reserved quota.
(li) After a period of ten years from the date of the coming into opera¬
tion of the Federal Constitution all such reservations shall cease.
(i«9 In these services there shall be no reservation for any community after
the lapse of 10 years.
(h) (0 The present grants to Anglo-Indian education made by the Central
and Provincial Governments should be continued unchanged for three years
after the coming into operation of the Federal Constitution.
(i*0 After the expiry of the first three years, the grants may be reduced
bv 10 per cent and by a further 10 per cent after the sixth year, and again
by a further 10 per cent after the ninth year. At the end of the period of
10 years, special concessions to Anglo-Indian schools shall cease.
(ki) During this 10 years period, 40 per cent of the vacancies in all such
State aided Anglo-Indian schools shall be made available to members of
other communities.
WORKING OF SAFEGUARDS
11. Officer to be appointed: An officer shall be appointed by the Presi¬
dent at the Centre and by the Governors in the Provinces to report to the
Union and Provincial. Legislatures respectively about the working of the
safeguards provided for the minorities.
12. Statutory Commission for backward classes: Provision shall also be
made for the setting up of a Statutory C ommi ssion to investigate into the
conditions of socially and educationally backward classes, to study the diffi¬
culties under which they labour and to recommend to the Union or the
unit Government, as the case may be, the steps that should be taken to
e limin ate the difficulties and the financial grants that should be given and
the conditions that should be prescribed for such grants.
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PART FOUR
PRINCIPLES OF THE UNION AND PROVINCIAL
CONSTITUTIONS
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THE QUESTIONNAIRE ISSUED BY THE
CONSTITUTIONAL ADVISER
March 17, 1947
[The British Prime Minister's statement of February 20, 1947 announc¬
ing transfer of power to Indian hands by June 1948 [see Voi. I, Docu¬
ment No. 84(i )] imported an element of urgency into the work and
proceedings of the Constituent Assembly. On March 9, the President
of the Assembly, Rajendra Prasad, discussed with B. N. Rau, the
Constitutional Adviser to the Assembly, the procedure to be adopted
in view of the statement of February 20. In a note recorded after
the discussion, B . N. Rau observed that it would be useful to circu¬
late to the members of the various legislatures a questionnaire bearing
on the salient features of the Constitution. He hoped that the answers
elicited by such a questionnaire might supply the Assembly with suf¬
ficient material in the light of which to prepare the draft of a new
Constitution. A draft so prepared, he added, was more likely to find
acceptance when it was subsequently circulated to the Provinces and
would thus save valuable time. The questionnaire was circulated to
all the members of the Central and Provincial Legislatures on March
17. In a covering letter, B. N. Rau pointed out that though the
questionnaire dealt only with the constitution of the Centre, most
of the questions would apply, mutatis mutandis, to the Provincial
sphere also. Later, the questionnaire was also circulated to members
of the Union Constitution Committee and the Provincial Constitu¬
tion Committee (see Documents Nos. 16 and 22). The texts of
B. N. Rau f s letter of March 17 and the questionnaire are reproduced
below.]
B. N. RAU’S LETTER TO THE MEMBERS OF THE CENTRAL AND
PROVINCIAL LEGISLATURES
March 17, 1947
Sir,
In order to facilitate the work of framing a new Constitution before
June, 1948, it is considered desirable to issue a questionnaire, bearing on
the salient features of the Constitution, to all the members of the various
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FRAMING OF INDIA’S CONSTITUTION
Provincial Legislatures and of the Central Legislature and to invite their
individual views thereon.
2. Such a questionnaire is annexed to this letter. The questionnaire
is divided into five parts, and in each part are set out a certain number of
questions bearing on its subject-matter. Brief explanatory notes have been
inserted under each question.
3. The questionnaire, as will be noticed, deals only with the Constitution
of the Centre. But most of the questions will apply, mutatis mutandis, to
the Provincial sphere also. You are therefore requested to give your ans¬
wers both in regard to the Union Constitution and in regard to the
Provincial Constitution.
4. Your answers may kindly be sent so as to reach this office as early as
possible and in any case before April 10, 1947, as the matter is very
urgent.
5. It is considered unnecessary to frame any questionnaire regarding,
group constitutions until the sections have decided to set up such consti¬
tutions.
Questionnaire
A
HEAD OF THE INDIAN UNION
1 What should be the designation of the Head of the Indian Union'I
[Note: In this and the following notes reference has been made to the
constitutions of various countries. But it must be remembered that the
United Kingdom and Ireland are not Federations and even South Africa
is not a true Federation.
US.A. "I
Switzerland v President
Ireland J
Canada \ The local Executive Head is the Governor General
Australia j on behalf of His Majesty.
South Africa .—The local Executive Head is the Governor General.]
2. How should he be chosen ?
[Note: The answer will probably turn on whether the Head of the
Indian Union is to be a real Head as in the U.S.A. or merely a nominal
Head as in Switzerland. If he is to be a real Head, independent of the
Legislature, he may have to be elected otherwise than by the Legislature
as in the U.S.A. If he is to be a nominal Head, not independent of the
Legislature, he may be elected by the Legislature as in Switzerland. The
case of Ireland is peculiar, because the President is elected by the direct
vote of the people and yet is to a large extent a nominal Head acting on
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THE QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
435
the advice of Ministers responsible to the Legislature.
US.A. —The President is elected by an electoral college in which
each Stale has as many electors as it has members in the Congress (i>,
the Fedeial Legislature, including both Houses), the electors being elected
in each State by adult franchise. This mode of election is presumably due
to the theory of the American Constitution that the executive power must
be completely separated from the legislative power. An absolute majority
is required for election of the President. Where no candidate secures an
absolute majority, the House of Representatives elects the President from
among the highest three, each State having one vote.
Switzerland. —The President is elected annually by the Federal Assembly
(i.e„ the Federal Legislature, including both Houses) from amongst the
members of the Federal Council (Executive), who are also elected by the
Federal legislature.
Ireland. —The President is elected by the direct vote of the people (secret
voting, on the system of proportional representation by means of the single
transferable vote).
3. What should be his term of office ?
[Note:
US.A .—4 years (elected every leap year).
Switzerland. —1 year (annual election).
Ireland. —7 years.
Canada *)
Australia v Customary term of 5 years.]
South Africa J
4. Should he be eligible for re-election ?
[Note :
USA. —Eligible for re-election: previous to Franklin Roosevelt, con¬
vention of not more than two terms. Franklin Roosevelt held office for 4
consecutive terms, the last one interrupted by death.
Switzerland .—Re-election of the President who is in office is prohibited
by the constitution. By usage, the office rotates among the members of
Federal Council.
Ireland .—Eligible for re-election to the office once, but only once.]
5. Should the office rotate among the different communities in tuml If so,
how?
[Note:
US.A. —No provision.
Switzerland .—By usage, the offices of the President and the Vice-President
rotate amongst the members of the Federal Council in which the main com¬
munities are represented.
Ireland. —No statutory provision; but the first President was a Protes¬
tant (Dr. Hyde, elected in 1938); the present President is a Roman
Catholic.]
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FRAMING OF INDIA’S CONSTITUTION
6. Assuming that the Indian Union is to have a President as its Head,
should there be a Vice-President or Vice-Presidents?
[Note:
US.A. —There is a Vice-President who also presides over the Senate.
Method of election is the same as that of the President except that when he
fails to secure an absolute majority of the votes of the electors, he is elected
by the Senate from amongst the highest two.
Switzerland. —There is one Vice-President elected by the Federal Assem¬
bly from amongst the members of the Federal Council.
Ireland. —No provision for Vice-President.
USS.R. —The Presidium has a President and 16 Vice-Presidents, cor¬
responding to the number of Republics.]
7. What should be the term of office of a Vice-President ?
[Note:
US.A .—4 years (election every leap year).
Switzerland. —1 year.
Ireland .—No Vice-President.]
8. What should be the functions of the President ?
[Note:
US.A. —The President is the Commander-in-Chief of the Army, Navy
and Air Force, receives Ambassadors, eta, and makes treaties subject to
the consent of a two-thirds majority of the Senate. He appoints Ambas¬
sadors and Consuls, Judges of the Supreme Court and such inferior officers
as provided for by law. He recommends measures for the consideration of
the Congress. He has an absolute veto over legislation which can only be
overcome by a measure being passed by a two-thirds majority of each of the
two Houses. He has also, what is called, the “pocket veto”, i.e„ a measure
passed within ten days of the adjournment of the Congress and not assented
to by the President is deemed to have lapsed. He may grant reprieves and
pardons (except in cases of impeachment) for offences against the State,
commute sentences, etc. He is liable to impeachment.
Switzerland. —The President has only formal or ceremonial functions, the
principal one being that of presiding over the Federal Council. He is in
charge of one of the administrative departments.
Ireland. —The President, on the nomination of Dail Eireann, appoints the
Prime Minister (Taoiseach) or the Head of the Government, who, in turn,
recommends the appointment of other members of the Cabinet. He sum¬
mons and dissolves Dail Eireann on the advice of the Prime Minister and
in case the Prime Minister has lost the support of the majority in the Dail,
the President may, in his absolute discretion, refuse to dissolve the Dail.
The President may at any time after consultation with the Council of
State convene a meeting of either or both of the Houses, communicate with
them by message or address—which has received the approval of Govern¬
ment—on any matter of national or public importance or address a
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THE QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
437
message approved by the Government to the nation at any time on any
such matter. He is the Supreme Commander of all Defence Forces and all
commissions are held from him. He has a right of pardon and a power to
commute or remit punishment. He is liable to impeachment.]
9. What should be the functions of the Vice-President ?
[Note :
UJS.A. —Presides over the Senate; becomes President if President dies
during term of office.
Switzerland. —Member of the Federal Council, in charge of an adminis¬
trative department, and presides over the council in the absence of the
President.]
10. Should the President be liable to removal! If so, in what manner ?
[Note:
US.A. —The President is removable from office only by impeachment.
The Lower Chamber initiates proceedings and the Senate sits as a court
of trial. The President is removed on the majority vote of the Senate sitting
as the court of impeachment.
Switzerland. —No specific provision.
Ireland. —Removable by impeachment. The President may be impeached
for stated misbehaviour. A proposal to either House to prefer a charge
against the President is entertained when moved in writing by at least 30
members of that House and is adopted when at least two-thirds of the
total members support it. The other House investigates the charges or
causes the charges to be investigated. If it sustains the charge by a two-
thirds majority erf the total members, the President is removed.]
11. How is a temporary vacancy in the office of the President to be filled!
[Note:
US.A. —The Vice-President acts as President for the rest of the term.
Switzerland .—Apparently the Vice-President acts as President.
Ireland .—A commission consisting of the Chief Justice, the Chairman
of Dail and the Chairman of Senate acts for the President. The commis¬
sion may act by any two of their number.]
B
BXBCUTIVB
12. What should be the nature and type of the Union Executive ? Should
it be of the British type {parliamentary ) or the American type ( non¬
parliamentary)) or the Swiss type {mixed) or any other type ?
[Note: From the point of view of practical administration this is per¬
haps the most important question in the framing of the new Constitution.
There are, as indicated in the questionnaire, three main types of executives.
In the British type, the Executive is responsible to the Legislature and
29
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FRAMING OF INDIA’S CONSTITUTION
has to resign on loss of confidence of the Legislature. In the American
type, the Executive is not responsible to the Legislature; each derives its
authority from the people direct and is not responsible to the other. In
the Swiss type, the Executive is elected by the Legislature for a tom of
4 years (which is also the life of the Legislature) and no question of resig¬
nation during the term arises. In the Irish Free State Constitution of 1922,
we find a fourth type: there was a Ministry of the British type plus certain
additional Ministers appointed rather on the Swiss plan—that is to say,
they were nominated by the Dail on the recommendation of a special com¬
mittee, they held office for the term of the Dail, and were responsible only
to the Dail. The British type is the (me with which we are most familiar in
India and its features are well-known. The main features of the Swiss
type are: (1) it gives all sections a chance of being represented in the
Executive, the election being by proportional representation, (2) it enables
the Ministry to concentrate on the real problems of the country for a fixed
term of 4 years without being distracted by motions erf no-confidence, (3) it
ensures a substantial degree of responsibility to the Legislature, inasmuch as
the Executive is not only elected by the Legislature but is also subject to its
directions. The Irish Free State type had a short life and has been abandoned
in the new Irish Constitution, which has adopted the British type.
UJC. and the Dominions .—By convention the Executive (Cabinet) is
responsible to the Legislature and retains office so long as it enjoys the
confidence of the Legislature.
US.A .—The President is the head erf the Federal Executive with a
Cabinet of 10 heads of departments called Secretaries, appointed by him,
subject to the nominal approval of the Senate and answerable only to him.
Executive not responsible to Legislature. Non-parliamentary.
Switzerland .—The Federal Council consists of 7 members elected by
the Legislature (by proportional representation) once in 4 years. They
are eligible for re-election. Not more than one is elected from the same
Canton. A mixture of parliamentary and non-parliamentary.
Ireland .—Ireland has put into statutory form what in U.K. is based
on convention. The government consists of 7 to 15 members appointed
by the President. One of them acts as Prime Minister, and another as
Deputy Prime Minister. Responsible to Dail Eireann, though the Ministers
may be chosen from both the Houses, at most two from the Senate.
Parliamentary.]
13. If Parliamentary, should there be any special provision to secure a
stable Executive ?
[Note: The following observations in the Simon-Attlee Report are
worth notice. Although they relate to the Provincial sphere they are of
general application:
We think that under the conditions which have developed in the Indian
Provinces, Ministers are too much at the mercy of hostile combinations
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THB QUESTIONNAIRE BV THE CONSTITUTIONAL ADVISER
439
against them for good work to be done. Ministers need to feel that they
are assured of a reasonable period within which their policy may mature and
its results may be judged; at present some of them are so much occupied
in maintaining their position by securing the temporary support of this or
that group of critics or malcontents that it must be very difficult to carry
on the main work of ministerial government at all.
Ireland. —In the Irish Constitution of 1922 an attempt was made to
secure stable administration by providing for Ministers, outside the Cabi¬
net who retained office even after the Cabinet had resigned. This experi¬
ment was carried out in the first two Dails, but apparently was found
unworkable. See note under question No. 12 above.
China. —In case there is disagreement on any matter between the
Legislature on the one hand and the Cabinet supported by the President
on the other, the Legislature can make its views prevail over those of the
Executive only by passing a measure or proposition by a two-thirds
majority of members present.]
14. What should be the composition of the Executive? What should be the
maximum, if any, of the number of Ministers?
[Note:
UK. —No statutory maximum. The number at present in the Cabinet
is 20 members including the Prime Minister.
Canada. —No statutory maximum; the number at present is 20 mem¬
bers including the Prime Minister.
Australia. —There is a statutory maximum of seven until Parliament
otherwise provides. The number at present is 19 members including the
Prime Minister. Ministers cannot remain in office more than 3 months
without being members of one of the Houses of the Legislature.
South Africa. —There is a statutory maximum erf eleven. Ministers
cannot remain in office more than 3 months without being members of one
of the Houses of the Legislature.
U.S.A. —President with 10 heads of departments called Secretaries
who are answerable only to him. None of these can be a member of either
House of the Legislature.
Switzerland. —The Federal Council consists of 7 members elected by
the two Houses of the Legislature at a joint sitting. None erf them can be
a member of either House, but all may sit and speak without voting.
Ireland.—Consists of 7 to IS Ministers, selected from among the mem¬
bers of both the Houses, not more than two being selected from the Upper
House. All continue to be members of the House from which they were
selected.]
15. Should provision be made to secure representation of different com¬
munities on the Executive ? If so, how ?
[Note:
US.A. —No provision.
Switzerland .—Not more than one member of the Federal Council can
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FRAMING OF INDIA’S CONSTITUTION
be chosen from the same Canton.
Canada. —No statutory provision. In considering the claims of various
candidates for ministerial office the Premier has to take into account race,
religion and geographical factors. Where the total number was 23, 3 were
usually assigned to French Canada and 3 to Ontario; at least 1 was
assigned to each of the Provinces of Nova Scotia, New Brunswick, Manitoba,
Saskatchewan, Alberta and British Columbia, and a politician of Irish
extraction usually represented the English speaking Roman Catholic Church.]
16. How should joint responsibility or co-ordination be secured ?
[Note:
U.K. and the Dominions. —By convention all the Ministers jointly
responsible to the Legislature. They are chosen by the Prime Minister.
The Government must be one which can work together and can secure the
support of the Lower House. The first mark of the Cabinet is united and
indivisible responsibility.
USA. —No responsibility to the Legislature. Co-ordination secured,
because all the Secretaries hold office during the pleasure erf the President
and are answerable to him.
Switzerland. —Federal Council is bound by the decisions of the Federal
Legislature. The Council arrives at a decision by majority vote. When
Council is not unanimous on any matter, it is open to Ministers to speak
against each other in the Legislature and this sometimes happens; but
when once the Legislature decides the matter, all Ministers loyally carry
out the decision. The Legislature may therefore be regarded as the
co-ordinating factor in the last resort.
Ireland. —The Cabinet is collectively responsible to the Dail Eireann
and holds office during its command of majority in the Dail. The statutory
provisions follow the British convention.]
17. How should the members of the Executive be chosen ?
[Note:
U.K. and the Dominions. —The choice of the Prime Minister is made
by the King, or the Governor-General, as the case may be, and the nature
of the choice depends upon the state erf parties in the Lower House. The
Prime Minister chooses his colleagues in the Cabinet.
U.S.A. —President (elected by an electoral college) selects his Secre¬
taries subject to the normal approval of the Senate.
Switzerland .—The members of the Federal Council chosen by the
Federal Legislature at a joint sitting.
Ireland. —The President appoints the Prime Minister on the recom¬
mendation of Dail and other Ministers on the recommendation of Prime
Minister.]
18. What provisions should be made for the removal of the Executive?
[Note:
UK. and the Dominions. —The Cabinet holds office so long as it has
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441
the confidence of the Lower House. It can be removed by a vote of no-
confidence by the Lower House.
US.A .—President may be removed by impeachment; Secretaries are
removable by the President.
Switzerland—No specific provision.
Ireland .—The Prime Minister and Ministers hold office so long as they
have the support of the majority in the Lower House. Individual Ministers
can be removed from office on the advice erf the Prime Minister.]
19. What should be the nature of relations between the Head of the Union
and the Executive?
[Note:
U.K .—The King is merely a formal Head. In all political matters
he acts on the advice of the Cabinet. He has certain prerogative powers
namely, (1) the right to dissolve Parliament, (2) the right to refuse a dis¬
solution of Parliament, and (3) the right to select Prime Minister. These
rights are circumscribed by many considerations and are very often of
theoretical interest only. There are also certain personal prerogatives which
he exercises on his own responsibility.
Dominions .—The Cabinet is the de facto Executive. In all political
matters the Governor-General acts only on the advice of the Cabinet.
He does not preside over the business meetings of the Cabinet, which are
summoned in the name of the Prime Minister. The Governor-General
acts merely as the constitutional head of the Government advised by the
Ministers.
US.A .—The President is the Head of the Union, as well as the Chief
Executive.
Switzerland .—The President is the Head of the Union and also a Minis¬
ter in charge of an administrative department like other Ministers. No special
powers, except those of a formal or ceremonial character, vested in him.
Ireland .—The President is the titular Head and all laws are promul¬
gated in his name. The President acts with the consent of the Prime
Minister and his Cabinet except when the Cabinet loses the confidence of
the Dail. In that case the President may in his discretion, dissolve the
Dail and call for fresh elections. The President is also advised by the
Council of State which has the Prime Minister and Deputy Prime Minister
among its members.]
C
LEGISLATURE
20. Should the Union Legislature have a single Chamber or two Chambers?
[Note: Second chambers are set up for various reasons: e.g., to re¬
present special interests or classes as in Ireland; as a check on hasty and
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FRAMING OF INDIA’S CONSTITUTION
ill-conceived legislation of the Lower House as in France; to provide equal
representation to the different constituent units of a federation as in
U.S.A. It may provide for a continuous term of office, only a portion of
the members retiring at regular interval as in U.S.A., and the old French
Constitution. This secures the representation of past as well as current
opinion and helps in maintaining continuity in public policy.
There is a growing opposition to the second chamber for various reasons,
viz., (1) it may tend to be reactionary, over-conservative and check urgently-
needed but radical reforms, (2) it may be instrumental in delaying legisla¬
tion, (3) it tends to be undemocratic since it is very difficult to constitute
a truly democratic second chamber on a different basis from the
lower chamber, (4) it is expensive to the country and politically-
backward countries also lack able statesmen to man a second chamber
properly.
UK. and the Dominions .—All bicameral (Two chambers).
UK. —House of Lords (Upper House).
House of Commons (Lower House).
Canada. —Senate (Upper House).
House of Commons (Lower House).
Australia. —Senate (Upper House).
House of Representatives (Lower House).
South Africa. —Senate (Upper House).
House erf Assembly (Lower House).
U.S.A. —Bicameral : Senate (Upper House), and
House of Representatives (Lower House).
Switzerland. —Bicameral: Council of States (Upper House), and
National Council (Lower House).
Ireland. —Bicameral : Seanad Eireann (Upper House), and
Dail Eireann (Lower House).]
21. // bicameral, how should the two Houses be constituted?
[Note:
UK. —The British House of Lords is erf the traditional type. Most of
the members are hereditary peers. In addition to these 16 are elected by
the Scottish peers, for the duration of each Parliament. There are also
some who are members of the House by virtue of office: the Archbishops
and Bishops, and the Law Lords.
House erf Commons: Entirely elected.
Canada. —Senate (Upper House) : Senators nominated for life. There
are 24 Senators from each of four territorial divisions: Ontario, Quebec,
the Maritime Provinces (including Prince Edward Island), and the Western
Provinces.
House of Commons (Lower House) : Entirely elected, Quebec returning
65 members and other Provinces in proportion to population relatively to
Quebec.
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Australia. —Senate (Upper House) : Entirely elected directly through
territorial constituencies. 6 Senators from each State, until Parliament
otherwise provides.
House of Representatives (Lower House): Entirely elected: total num¬
ber of members is as nearly as possible double the number of Senators
and is distributed among the States according to population, with a mini¬
mum of 5 for any State.
South Africa. —Senate (Upper House): Partly elected—each Province
electing 8—and partly nominated (8) by the Governor-General in
Council.
House of Assembly (Lower House) : Entirely elected, the quota for each
Province depending upon the number of its European adult Union
Nationals.
U.S.A. —Senate (Upper House) : Constituted on the basis of direct elec¬
tion, each State forming a constituency and electing 2 Senators.
House of Representatives (Lower House) : Entirely elected. Under the
constitution, the total number of representatives must not exceed one for
every 30,000 of the population but each State shall have at least one re¬
presentative. The actual average representation at present is only one for
every 300,000.
Switzerland. —Council of States (Upper House) : Each of the Cantonal
or half-Cantonal units is free to determine the mode of election of its
representatives. Direct election in 21 units and election by Cantonal
Legislatures in the other 4. Each Canton elects 2 Senators and each half-
Canton one.
National Council (Lower House) : Constituted on the basis of direct
election. Entirely elected. One member for every 22,000 of the popu¬
lation.
Ireland. —Seanad Eireann (Upper House) : Out of a total of 60 mem¬
bers, 11 are nominated by the Taoiseach (Prime Minister) and the rest
elected through electoral colleges to represent specified functional
interests.
Dail Eireann (Lower House) : Entirely elected on the basis of direct elec¬
tion. Not less than one member for every 30,000 of the population nor
more than one member for every 20,000.]
22. What provisions should be made for the adequate representation of
different communities and interests ?
[Note:
UX. —Universities are given special representation.
South Africa. —4 elected and 4 nominated to represent native interests
in the Upper House. 3 seats allotted in the Lower House for natives of
Cape Colony.
USA. —No provision.
Switzerland. —No specific provision. The system of proportional
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FRAMING OF INDIA’S CONSTITUTION
representation helps to secure the adequate representation of different
communities.
Ireland .—Provision made for the representation of functional interests
such as “agricultural and allied interests and fisheries”, “Labour”, “Industry
and Commerce” in the Upper House; system of proportional representation
for the Lower House.]
23. What should be (a) composition, ( b ) franchise, (c) electorate, (d) cons¬
tituencies, (e) methods of election and (f) allocation of seats in respect
of the Union Legislature ?
(a) Composition
[Note:
U.S.A. —House of Representatives : 435 members at present; under
the constitution the total number must not exceed one for every 30,000
of the population, but each State shall have at least one representative. The
actual average representation at present is only one for every 300,000.
Senate : 96 members (2 from each of the 48 States).
Switzerland. —National Council (Lower House) : Varies according to
population (1 member for every 22,000 of the population); present strength—
194 members.
Council of States (Upper House) : 44 members (2 members each from
19 full Cantons, 1 each from the remaining 6 half-Cantons).
Ireland .—Dail Eireann (Lower House): Varies according to population
(not less than one member for every 30,000 of the population nor more than
one member for every 20,000); present strength—138.
Seanad Eireann (Upper House) : 60 members.]
(6) Franchise
[Note:
U.S.A. —For both the Houses, the franchise is the same as for the
State Legislature if unicameral, or for the Lower House of the State
Legislature if bicameral. Disqualifications on the ground of race, colour
or sex forbidden. Universal adult franchise in practice, subject to certain
minimum literacy qualifications.
Switzerland .—Universal adult male franchise for the Lower House,
Cantons and half-Cantons free to fix the franchise qualifications for the
Upper Home.
Ireland .—Adult franchise for the Lower House, and indirect election for
the Upper House.]
(c) Electorates
[Note: No separate or special electorates in U.S.A. and Switzerland.
For Ireland see “Methods of Election.”]
(d) Constituencies
[Note: Single member constituencies in U.S.A. Multi-member consti¬
tuencies for the Lower House in Switzerland and Ireland where election is
by the method of proportional representation.]
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THE QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
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(«) Methods of Election
[Note:
US.A .—Single-member constituencies for both the Houses, the person
getting the largest number of votes being declared elected.
Switzerland. —Projiortional representation for the Lower House. Each
of the Cantons or half-Cantons free to determine the mode of election for
the Upper House. Direct election in 21 Cantonal or half-Cantonal units
and election by the Legislatures erf the units in the other 4.
Ireland. —Proportional representation for the Lower House. For the
Upper House election is indirect. Nominations to elected seats are made
by recognised functional associations, members of the Lower House, the
Prime Minister, and persons who have held the office of the Prime Minister
or the President. Election is by electoral college composed of the mem¬
bers of the Dail Eireann and 7 persons elected by each one of the councils
of the counties or county boroughs. Voting is by the method of proportional
representation by means of the single transferable vote.}
(/) Allocation of Seats
[Note:
US.A .—Lower House: 435 seats distributed on the basis of population,
not exceeding one per 30,000 inhabitants, but with a minimum representation
of one for each State.
Upper House: 96 seats, two Senators per State.
Switzerland. —Lower House: One member for every 22,000 inhabitants,
but at least one member for each Canton or half-Canton.
Ireland .—Lower House: Allocation of seats as between constituencies
on the basis of population.
Upper House: Of the 60 members, 11 are nominated by the Prime
Minister, 6 are elected by the universities, and the remaining 43 are elected
from five panels of candidates constituted on a vocational basis.}
24. What should be the term of the Union Legislature ?
[Note :
UK .—Upper House: largely hereditary.
Lower House: 5 years, unless sooner dissolved.
Canada. —Upper House: Senators are nominated for life.
Lower House: 5 years.
Australia. —Upper House: Continuous, half retiring every three years,
term of membership being six years.
Lower House: 3 years.
South Africa. —Upper House : Normal term 10 years.
Lower House: 5 years.
US.A .—Lower House: Two years.
Upper House: Continuous, one-third retiring every two years, term of
membership being six years.
Switzerland. —Lower House: 4 years.
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FRAMING OF INDIA’S CONSTITUTION
Upper House: Each Canton or half-Canton free to fix the term erf office
of its representatives. Varies from 1 to 4 years.
Ireland. —Lower House: 7 years, unless sooner dissolved.
A shorter period may be fixed by law.
Upper House: Same as for Lower House.]
25. If bicameral, what should be the relative powers of the two Houses ?
What provision should be made to resolve deadlocks ?
[Note:
U.K. —Until 1911 the powers of the House of Lords were largely co¬
extensive with those of the House of Commons. This led to occasional
conflicts between the two Houses and finally the powers of the Upper
House were curtailed by the enactment of the Parliament Act erf 1911.
At present, all Money Bills, so certified by the Speaker of the House of
Commons, if not passed by the House of Lords without amendment, be¬
come law without their concurrence on the Royal assent being signified.
Public Bills, other than Money Bills or a Bill extending the maximum
duration of Parliament, if passed by the House of Commons in three suc¬
cessive sessions, whether of the same Parliament or not, and rejected each
time or not passed by the House of Lords, may become law without their
concurrence, on the Royal assent being signified, provided that two years
have elapsed between the second reading in the first session of the House
of Commons and the third reading in the third session. All Bills coming
under this Act should reach the House of Lords at least one month before
the end of the session.
Canada. —The powers of the Canadian Senate are, in law, equal to
those of the Lower House, excepting that Money Bills must originate in
the House of Commons, and convention requires that they may be rejected
but not amended. There are no adequate means to adjust differences
between the two Houses; all that the framers of the constitution have done
for this purpose is to provide for the appointment of additional members
to the Senate, but since the total strength of the House cannot exceed
104, the maximum number that can be nominated at any time to resolve
differences is 8.
Australia. —The Senate has equal powers with the House of Represen¬
tatives in respect of proposed laws except that Money Bills must originate
only in the Lower House and cannot be amended by the Senate. The
Senate may, however, at any stage return to the House of Representatives,
any proposed law which the Senate may not amend, requesting by message,
the omission or amendment of any items or provisions therein. But if
there is a deadlock between the two Houses, the Senate can force the dis¬
solution of both the Houses even in regard to Money Bills. But such dis¬
solution shall not take place within 6 months before the date of the expiry
of the House of Representatives by efflux of time. If the deadlock
continues even after the reconstituted Houses meet, it is resolved by a
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THB QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
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joint sitting of the two Houses. A majority of the total number of the
members of the Senate and the House of Representatives is required for
the measure to be passed into law.
South Africa. —The South African Senate has only limited powers and
is essentially a “House of review”. Money Bills must originate in the
House of Assembly only. The Senate may not amend any Bill which
imposes taxation or appropriates revenue or monies for the services of the
government, nor can it amend any Bill so as to increase any proposed
charges or burdens, on the people. If there is a difference of opinion bet¬
ween the two Houses, the constitution provides for a joint sitting, at which
a majority of the members present—and not, as in Australia, a majority
of the total number of members—is required for the Bill to be passed into
law. In the case of a Money Bill, the joint session is convened during the
same session; in the case of other Bills, during the second session of the
Legislature.
US.A. —The Upper House has all the powers of the Lower House and
a few more. Its consent is required for the appointment of ambassadors,
judges and other high officials and it has the sole power to try all
impeachments. Its consent by a two-thirds majority is required for the
conclusion of all treaties. A Joint Conference Committee tries to iron out
differences, but no provision is made in the constitution for resolving dead¬
locks.
Switzerland.— The two Houses have co-ordinate powers. In cases of
difference of opinion, the respective committees of the two Houses try to
arrive at a compromise, but no provision is made in the constitution for
resolving deadlocks.
Ireland. —The Upper House has a suspensory veto for a period of only
90 days in respect of Bills other than Money Bills or urgent Bills. If it
has the support of one-third of the members of the Lower House, it
can ask the President for a referendum to ascertain the will of the people
and the President, in consultation with the Council of State, may grant
the request. This procedure does not apply to Bills proposing to amend
the constitution.]
D
JUDICIARY
26. Should there be a separate chain of courts to administer Union Laws ?
[Note: In U.S.A. there is a separate chain of Federal Courts, but not
in Canada. Australia or Switzerland.
US.A. —Under the constitution the judicial power of the United States
is vested in a Supreme Court, and in such inferior courts as the Congress
may from time to time ordain and establish. There are, at present, two
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FRAMING OF INDIA’S CONSTITUTION
sets of inferior Federal Courts, namely, the Federal District Courts and
the Circuit Courts of Appeal. The country is divided into 83 districts,
each State constituting at least one district. From the Federal Courts
of these districts there is an appeal to Circuit Courts, which are ten in
number. There are also two special courts, namely the Court of Claims
and the Court of Customs Appeals. In certain cases, however, the State
courts may be, and are, permitted, in the exercise of the jurisdiction vested
in them by the constitution or laws of their respective States, to deal with
causes which are within the federal judicial power. But their jurisdic¬
tion in such cases may be qualified by the right of the defendant to have
the cause removed before trial into a Federal Court, or after trial the case
may be taken by appeal to the Federal Supreme Court.
Australia. —The judicial power of the Commonwealth is vested in a
Federal Supreme Court, called the High Court of Australia, and “in such
other federal courts as the Parliament creates, and in such other courts as
it invests with federal jurisdiction”. The Parliament is also empowered,
to make laws investing any court of a State with federal jurisdiction.
Thus the constitution has left to the discretion of the Parliament the
determination of the degree to which the agency of the State courts is to be
utilised for the administration of federal laws. Under the Judiciary
Act of 1903, as amended from time to time, the several courts of the States
are vested with federal jurisdiction in matters not within the exclusive
jurisdiction of the High Court, and there is a right of appeal from these
courts to the High Court.
Canada. —Under the constitution the Canadian Parliament is em¬
powered to establish a General Court of Appeal for Canada and other
courts for the better administration of the laws of Canada. In the exer¬
cise of these powers, the Canadian Parliament has set up a Supreme Court
of Appeal and an Exchequer Court. In other respects, the administration
of justice, including the constitution, maintenance and organisation of civil
and criminal courts and civil procedure, is a Provincial subject while
criminal law and procedure are assigned to the Federation. It may be noted
that the constitution vests the Governor-General with power to appoint
the judges of the superior, district, and county courts of each Province,
subject to certain exceptions.]
E
amendment to constitution
27. What provisions should be made regarding amendments to the Cons¬
titution ?
[Note:
U.K .—The British Constitution can be altered by an Act of Parliament
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THE QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
449
Canada .—The Constitution of the Dominion of Canada can only be
amended by the Parliament of Great Britain. The Constitution Act itself
does not contain any provision regarding such amendments and the Statute
of Westminster clearly lays down that it should not be deemed to apply
to the repeal, amendment or alteration of the “British North America
Acts”, 1867 to 1930, or any order, rule or regulation made thereunder.
As a matter of form, changes in the constitution have been carried out on
addresses from the two Houses of the Dominion Parliament; but this would
be difficult if the measures were opposed by one or more of the Provincial
Legislatures. It may be noted that the last of the amendments to the cons¬
titution, passed in 1907, was based on the assent of all the Provinces; British
Columbia demanded better terms but finally agreed to the passing of the
measure.
Australia .—A proposal to amend the Constitution must be passed by
an absolute majority in each erf the two Houses, and not less than 2 nor
more than 6 months after its passage through both Houses, must be sub¬
mitted in each State to the electors of the House of Representatives (Lower
House). But if an amendment proposed by an absolute majority of one
House is not agreed to by the other House, and if after an interval of three
months, the amendment is again proposed by the first-mentioned House
and again not agreed to by the other House, the Governor-General may
submit the proposed amendment to the electors in each State. The proposed
amendment cannot become law unless it is approved by a majority of
electors voting and by a majority of the States. No amendment (1) dimini¬
shing the proportionate representation of any State in either House of
Parliament, (2) diminishing the minimum .number of representatives of a
State in the House of Representatives, (3) increasing, diminishing, or other¬
wise altering the limits of a State and (4) affecting the provisions of the
constitution in relation to the foregoing matters, may be carried unless the
majority of the electors voting in the State interested approve of the
proposed law.
Union of South Africa .—Except in regard to certain “entrenched”
provisions the Union Parliament may by law repeal or alter any of the
provisions of the Constitution Act. As regards the excepted provisions.
viz., section 35 (protection of the Cape native franchise), section 137
(equality of English, Dutch and Afrikaans languages), section 152 (amend¬
ment of the Constitution Act) proposals to amend them should be passed
at a joint session of both Houses of Parliament, and at the third reading
receive the assent of not less than two-thirds of the total number erf members
of both Houses.
U. S. A .—In the Constitution of the United States, two methods of
originating amendments are provided, and there are also two methods
of enacting amendments, when so originated. In the first place. Con¬
gress itself may, by a two-thirds majority in each House, draft and
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FRAMING OF INDIA’S CONSTITUTION
propose amendments; in the second place the legislatures of two-thirds of
the several States may apply to Congress to call a convention for the pur¬
pose of proposing amendments. When amendments are proposed by
Congress, or by a constitutional convention, they have to be submitted to
the States, and ratified in three-fourths erf the States, either by the State
Legislatures or by State conventions specially elected in each State for the
purpose.
Switzerland .—There are several methods by which revisions of the
Constitution may be originated and ratified. A total revision of the
Constitution may be brought about in three ways : (1) The National
Council and the Council of States may agree to an amendment, as in the
case of any ordinary federal law. The Constitution as drawn up by the
two Houses, must then be submitted to the popular vote, and if it is
approved by a majority of the people and by a majority of the Cantons,
it becomes law. (2) If one House votes for a total revision and the other
refuses its assent, the question is then submitted to the electors in each
Canton or half Canton, “Do you wish the Constitution to be revised—
Yes or No?” If the majority of electors vote “Yes” in support of a revision,
the two Houses are then dissolved, and a new Federal Assembly is
elected charged with the work of revising and drafting a new Consti¬
tution. When this has been prepared, it is submitted to the popular vote,
and if it is approved by a majority of the people and by a majority of
the Cantons it becomes law. (3) If 50,000 citizens sign a petition in favour
of a total revision of the Constitution, it is the duty of the Executive
to submit the question to the electors, “Do you wish the Constitution to be
revised—Yes or No?” If a majority erf the electors decide in favour erf
revision, the Federal Legislature has to carry out the popular wish, and
revise the Constitution for submission to the people. If on such submission
it is approved by the required double majority it becomes law.
There are two methods by which a partial revision or a partial amend¬
ment of the Swiss Constitution may be brought about. An amendment
may be proposed by the two Federal Houses, as in the ordinary process
of legislation. It must then be submitted to and acoepted by a majority
of the people and by a majority of the Cantons. A demand for the adop¬
tion of a new article, or the alteration of an old one, may be made in writing
by 50,000 Swiss citizens in the same way as a demand for a total revision.
If the Federal Legislature agrees with the demand of the petitioners it
proceeds to formulate the required amendment and prepare it for submis¬
sion to the people. If on the other hand it disagrees with the demand
the question is submitted to the people, “Are you in favour of a revision
of the Constitution—Yes or No ?” If a majority of the people decide in
favour of a revision it becomes the duty of the Federal Legislature, acting
as a Drafting Committee, to prepare the required amendment for submis¬
sion to the people. It is then submitted to the popular vote, and if it
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THE QUESTIONNAIRE BY THE CONSTITUTIONAL ADVISER
451
receives the support of the required statutory majority of people and of
Cantons, it becomes law. The final referendum is obligatory in every
proposal to amend the Constitution.
In reckoning a majority of the constituent units, the vote of a half
Canton is counted as half a vote.
Ireland .—Every proposal for amending the Constitution must be
initiated in the Lower House as a Bill, and after it is passed by both the
Houses of the Legislature, submitted to the people for their decision.
The Bill is held to have been approved by the people if the majority of the
votes cast is in favour of its enactment, and it becomes law after it is
signed and promulgated by the President in due form.
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14
SETTING UP OF THE UNION CONSTITUTION
COMMITTEE AND THE PROVINCIAL CONSTITUTION
COMMITTEE
April-May 1947
[By a resolution adopted on April 30, 1947, the Constituent Assembly
authorised the appointment of two committees, one to report on the
main principles of the Union Constitution and the other to report on
the main principles of a model Provincial Constitution . In pursuance
of the resolution the President nominated twelve members to the Union
Constitution Committee and twenty-one members to the Provincial
Constitution Committee. The text of the resolution and the personnel
of the two committees, as announced on May 4, 1947, are given
below.]
(i) CONSTITUENT ASSEMBLY RESOLUTION
April 30, 1947
This Assembly resolves that in accordance with the recommendation
contained in the Report of the Order of Business Committee* the following
committees be nominated by the President with instructions to report before
the next session of the Assembly.
1. A committee consisting of not more than fifteen members to report
on the main principles of the Union Constitution, and
2. A committee consisting erf not more than twenty-five members to
report on the main principles of a model Provincial Constitution.
(n) PERSONNEL OF THE UNION CONSTITUTION COMMITTEE
(1) Pandit Jawaharlal Nehru; (2) Maulana Abul Kalam Azad;
(3) Pandit Govind Ballabh Pant; (4) Mr. Jagjivan Ram; (5) Dr. B. R.
Ambedkar; (6) Sir Alladi Krishnaswami Ayyar; (7) Mr. K. M. Munshi;
(8) Mr. K. T. Shah; (9) Dr. Syama Prasad Mookerjee; (10) Sir V. T.
♦See Vol. I, Document No. 81(ii).
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SETTING UP OF THE UNION CONSTITUTION COMMITTEE
453
Krishnamachari; (11) Sardar K. M. Panikkar; (12) Sir N. Gopalaswami
Ayyangar.
(ffl) PERSONNEL OF THE PROVINCIAL CONSTITUTION COMMITTEE
(1) Sardar Vallabhbhai Patel; (2) Dr. P. Subbarayan; (3) Dr. B.
Pattabhi Sitaramayya; (4) Mr. B. G. Kher; (5) Mr. Brijlal Biyani;
(6) Dr. K. N. Katju; (7) Mr. Pbulan Prasad Verma; (8) Mr. Harekrushna
Mabtab; (9) Mr. Kiran Shankar Roy ; (10) Mr. Rohini Kumar Choudhury;
(11) Mr. Jairamdas Daulatram ; (12) Sardar Ujjal Singh; (13) Diwan
Chaman Lall; (14) Dr. P. K. Sen; (15) Mr. C. M. Poonacha; (16) Mr.
Radhanath Das; (17) Mr. Satyanarayan Sinha ; (18) Mr. Rafi Ahmed Kidwai;
(19) Mrs. Hansa Mehta; (20) Rajkumari Amrit Kaur; (21) Dr. H. C.
Mookherjee.
30
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15
NOTES, MEMORANDA ETC. SUBMITTED TO THE
UNION CONSTITUTION COMMITTEE
May-June 1947
[At the first meeting of the Union Constitution Committee, held on
May 5, 1947 (see Document No. 16) it was decided that members
should, by May 15, send in their memoranda or drafts to the Assembly
Secretariat expressing their views on the principles of the Union Con¬
stitution and that the Constitutional Adviser, B. N. Rau, would there¬
after circulate to the members a self-contained memorandum to serve
as a basis of discussion. To assist the members in preparing their
memoranda, they were supplied with the questionnaire (see Document
No. 13) which B. N. Rau had earlier issued to members of the Cen¬
tral and Provincial Legislatures. By the end of the month, only one
member, K. M. Panikkar, replied to the questionnaire; another mem¬
ber, K. T. Shah, sent a copy of ‘General Directives? which he had sub¬
mitted to the President of the Assembly as early as December 22,
1946, and a Draft Constitution. B. N. Rau presented on May 30,
1946 an independent memorandum and a detailed draft of many of
rht proposed provisions, both of which were circulated to members
on June 2. Subsequently, a few more documents were received from
committee members. These were: replies to the questionnaire from
Syama Prasad Mookerjee, two notes on the principles of the Union
Constitution from K. M. Panikkar and a joint memorandum on the
principles of the Union Constitution from Gopalaswami Ayyangar
and Alladi Krishnaswami Ayyar. K. T. Shahs ‘General Directive£,
a statement showing the replies from Panikkar and Mookerjee and the
joint memorandum of N. Gopalaswami Ayyangar and Alladi Krishna¬
swami Ayyar were also circulated to members and are reproduced
below along with B. N. Rau's memorandum and the draft clauses
prepared by him. The Draft Constitution prepared by K. T. Shah, a
summary of which was circulated, is not being reproduced here as it
covered more or less the same ground as the ‘General Directives?.}
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455
(i) K. T. SHAH’S 'GENERAL DIRECTIVES'
December 1946
(a) Letter from K. T. Shah to Rajendra Prasad
December 22, 1946
As promised. I am enclosing herewith a copy of the ‘General Directives’
prepared originally at the instance of Pandit Jawaharlal Nehru in July
last. It is based on a combination of American. British and French models.
The State here dealt with is a Federal Union made up of the States as well
as Provinces, Tribal Areas, Excluded Areas and the Centrally Administered
Areas of today. There is room for accession of other countries to the Union.
There is a distribution of sovereignty between the Union which is
absolutely sovereign in international affairs, (and also ultimate sovereign
in domestic affairs) and the several component parts of the Union. The
former has only specified powers and functions, including their inevitable
implications and consequences; while the latter have all the rest, including
unspecified or residuary functions. Provision is made, however, for a
margin of common function by agreement, as also for ensuring the supre¬
macy of the Union Acts in the event of conflict.
A division of powers and functions of Government or sovereign authority
is also made as between the several organs of the State viz., the Legislative,
Executive and Judicial. Each is exclusively sovereign in its allotted sphere;
but there is room for co-ordination in the Council of Ministers, who are
to be appointed by the Head of the State in the Union, as well as in every
component part of the Union. The Council is collectively responsible for the
general policy as well as the particular acts erf administration.
Certain fundamental rights of individuals, citizens and minorities as well
as obligations have also been guaranteed. These form a separate document
which I shall try and send tomorrow.
I hope this will be useful. If any matter requires personal discussion
you have only to wire to me.
With kindest regards.
PS. I am afraid it has expanded into a Draft Constitution.
(b) Letter from Rajendra Prasad to K. T. Shah
December 26, 1946
Please accept my thanks for the two notes which you have been good
enough to send me. I have gone through them with great interest. I,
however, find that the distinction between the Provincial and the Union
Constitutions is not clearly marked. It may be that you have intentionally
left the matter for further consideration or you have left it in that condition
because you are not actually drafting a constitution but only indicating
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FRAMING OF INDIA’S CONSTITUTION
points for consideration. It is not necessary just at the present moment
lo trouble you.
*
*
*
(c) General Directives
1. The sovereignty of the State, namely, the Union erf India shall reside
in the people of India. They shall be the supreme authority and final
arbiter on all subjects concerning or relating to the constitution and
governance of the Union erf India.
2. This Constitution of the Union of India framed by the elected
representatives of the people erf India in Constituent Assembly assembled,
shall be deemed to have been ordained and promulgated in the name and
by the authority erf the people of India.
3. The Constitution likewise of any component part erf the Union shall
be deemed to have been ordained and promulgated in the name erf each such
component part of the Union.
4. The Constitution is ordained and established by and in the name
of the people of India and with their authority for the Union of India, for
the purpose of:
(a) Maintaining and promoting unity, integrity and national solidarity
of the Union of India in all parts thereof;
(b) Establishing political freedom and civic as well as social equality
in all parts of the country, and amongst all sections of the people,
irrespective of any difference of birth, sex, wealth, creed or colour;
(c) Ensuring social justice as between the several parts of the country as
well as between several sections of the people, and individuals;
(d) Maintaining domestic peace and order, under the supremacy of the
Rule of Law, as provided for in this Constitution and by the laws
made in conformity therewith ;
(e) Maintaining the security of the Union, and organising and providing
for national defence;
(/) Promoting the economic welfare and social security of the citizens
and the economic development of every part of the Union;
0?) Declaring, enforcing and upholding certain fundamental rights of
citizens and of human beings and of minorities, as provided for in
the Constitution;
(h) Facilitating entry into or close association with the Union of India
of neighbouring countries, peoples or tribes;
(0 Facilitating readjustment of boundaries between the several compo¬
nent parts of the Union; and
(/) Doing any other thing which may be found necessary and proper
in the interests of the Union, its peace and security, and peaoe
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457
among nations and goodwill among men.
5. The name of the independent sovereign Indian Republic shall be
the Union of India. It shall consist of the whole of India including all
die Provinces and States. Tribal and Excluded Areas.
6. The sovereignty of the Union of India shall be absolute and complete
in all international affairs and foreign relations.
All powers, duties, functions and authority necessary or incidental to,
or implied in the proper performance of the duties and responsibilities
resting upon a sovereign State in international affairs shall be deemed to
reside in the Union and be vested in the Union Government.
7. The powers and authority of the Union of India shall, for internal
purposes, be defined and distributed as between the Union Government
and the Governments of the several component parts of the Union:
Provided that wherever any power or function of the State is not
clearly defined or definitely assigned, either to the Union or to any Province
or State forming part of the Union, and that in consequence the sphere of
activity is uncertain or over-lapping as between the Union and its compo¬
nent parts, the same shall be presumed to be vested in or assigned to the
Province or State forming part of the Union:
Provided further that, in the event of any conflict, uncertainty, incon¬
sistency or incompatibility being found between any Act of State under
functions vested in both the Union and any component part or parts thereof,
the Union law shall prevail, and that of the component part shall be deemed
as null and void:
Provided further that any component part or parts may, by agreement
delegate any of its own powers or functions, duties or responsibilities to
the Union Government, and that, during the currency of such an agreement
the Union Government will be deemed to be vested with, and entitled to
the due exercise of, such powers and functions assigned by the said agree¬
ment to the Union.
8. The sovereign power, authority and functions of the State in India
shall be distributed and divided both as between the Union and component
parts of the Union, as also as between the three main organs of the State,
viz.. Legislative, Executive and Judicial.
9. Each of these three main organs of the State in India representing the
sovereign power and authority of the Republic, shall be mutually exclusive
and independent; and each shall be supreme in its own assigned sphere,
functions or activity:
Provided that Ministers of State shouldering collective responsibility for
the good governance of the Union or any component part thereof to the
people concerned shall be entitled to be members of the Legislature and
to have executive supervision over the judicial organ of the State.
10. The (basic) Constitution of the State shall provide the mechanism for
ensuring co-operation and co-ordination as between the several activities
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FRAMING OF INDIA’S CONSTITUTION
of these principal organs of the State in India e.g., collective responsibility
of Ministers with seats in the Legislature, joint conferences and consultations,
advisory committees and the like.
11. The form of Government in the Union of India, and in such component
part thereof as elect to accept it, shall be republican; that is to say, the
Chief Executive or the Head of the State shall be elected, for a prescribed
term erf years; and there shall be no hereditary or life long headship vested
in any individual or family.
12. Without prejudice to the preceding article, in the case of the existing
Indian States, where hereditary princes rule at the present time, arrangements
shall be made by negotiation and agreement to terminate the hereditary
headship and autocratic rule and substitute the same by elected headship
of the units concerned.
Such election shall be in conformity with the general spirit and specific
provisions of the Constitution of the country.
13. The Chief Executive or the Head of the Union of India or in any
component part thereof, shall be elected by the votes of all the adult citizens
of India in such form and manner as the Constitution of the Union or of
the unit concerned provides.
He shall be the first magistrate of the State, elected for a definite tom
erf years, subject to such qualifications for candidature and conditions of the
tenure of office,—including re-eligibility to the same office for consecutive
terms as the Constitution provides.
14. The Head of the State for the Union of India shall be elected for a
period of five years, and shall be eligible to the same office for another
similar term in succession. No one shall be eligible to be Head of the State for
the Union of India for more than two consecutive terms erf five years each.
15. The Head of the State shall be, subject to the Constitution, the
Chief Executive, spokesman and representative of the country and the
people of India in all domestic concerns as well as in international dealings
or relations with foreign countries. He shall have all rights, powers and
authority necessary for the due and proper discharge of his duties and
responsibilities under the Constitution, and in particular the right to appoint
certain high officers, such as judges of the Supreme Court, ambassadors,
or ministers representing the Union abroad. Ministers of State in India, sign
treaties, declare war, make peace and pardon convicted c riminal s. He
shall act in all such matters on the advice of or in consultation with the
Ministers of State, except where sole or exclusive discretion is reserved to
him under the provisions of the Constitution.
16. In the event of the Head of the State being unable to discharge the
duties of his office at any time through illness, accident, mental infirmity
or physical disability; or by disqualification imposed under terms of this
Constitution; or by resignation or death; the Vice-President or Deputy
Head of the State, elected at the same time and by the same electorate as
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
459
the Chief Executive shall become the Head of the State for the remainder
of the term.
The Head of the State may resign his office at any time during the
currency of the term of his office by letter in writing addressed to the
Speaker of the People’s House of Representatives.
17. If both the Head and Deputy Head of the Union of India are at any
time disqualified, or unable to discharge the duties of the office for any
reason laid down in the Constitution, the following officers shall take
charge of and officiate as the Head of the State, in the order named, for
the balance of the period for which the original election was made, or
substitution had taken place, namely:—
(a) The President of the House of Representatives of the Union of
India,
(b) The Premier or the Chief Minister of State for the Union of India,
(c) The Chief Justice of the Supreme Court for the Union of India.
In any case where any of these principal officers of State take charge of
the headship of the State in India, his place shall be filled up by the same
procedure as had originally brought such person into office.
18. The Head of the State is responsible for any act of administration
during his term of office to the people of the Union, through their chosen
representatives.
19. For the due discharge of his duties and responsibilities the Head
of the Union of India shall be entitled, directly by himself, or through the
responsible Ministers of State to propose measures to the Union Legislature
for enactment, with such alteration, amendment or addition as the Legisla¬
ture may deem fit, and without prejudice to the co-equal sovereign authority
of the legislative organ of the State in initiating and adopting any other
legislative measure coming within the scope of the powers and functions
assigned to it, not proposed by the Head of the State, or any responsible
Minister:
Provided that only a member of the House of the People’s Representatives
shall be entitled to present to that House for its consideration the budget of
the Union, and accounts and any other financial measure relating to the Union.
20. The Head of the State shall be entitled to address the Representa¬
tives of the People on the State of the Union at the commencement of each
year during the preceding year, and at any other time on domestic matters
or foreign relations as he may think proper and necessary.
21. For the proper maintenance of his status and dignity as the Chief
Magistrate of the Union, adequate provision shall be made by way of
accommodation, secretarial staff and travel assistance, and appropriation in
the annual budget of the Union of such sum as the House of Representa¬
tives deem adequate, and in proportion to the dignity of the country.
This grant shall not be liable to alteration during the currency of the term
of office of any Head of the State, except by agreement between the Head
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FRAMING OF INDIA’S CONSTITUTION
of the State and the House of People’s Representatives who shall give effect
to such agreement by appropriate legislation. Such alteration shall hold
good only during the balance of the term of office of the Head of the State
who made this agreement, and shall not apply to his successor in office,
without a fresh agreement on the subject between the new Head of the State
and the House of the People’s Representatives.
22. The House of the People’s Representatives shall alone have the power
to consider the budget presented by the responsible Minister, who shall also
be a member of that House, and coosider the general financial position of
the Union and any component part thereof, as well as the annual accounts of
receipts and disbursements of the Union, its credit position at home or abroad,
and take such measures as may be deemed proper and necessary at any
time, subject to the Constitution. The House of the People’s Representatives
shall pass and sanction the budget with such modifications, alterations,
amendments or additions or omissions as it deems necessary and proper.
23. The Head of the State, being responsible to the people through their
chosen representatives, is liable to impeachment for any grave offence
against the security of the State or integrity of the Union, breach of trust
or oath of office, and if proved guilty by a vote erf two-thirds of the total
membership of both the Houses of Legislature sitting together, and assisted
by all the judges erf the Supreme Court erf Judicature in India, he shall be
removed from his office even during the currency of his term of office.
This clause shall apply to any one acting as Head erf die State, whether
originally elected to that office directly by the people, or succeeding him
in any of the contingencies mentioned in articles 16—17 above.
24. On the occasion of an impeachment, both the Houses erf the Union
Legislature shall sit together; and the Chief Justice of the Supreme Court
of Judicature in India shall preside. The accusation will be made and
prosecution conducted by and on behalf of the House of Representatives by
a committee of its members duly appointed for the purpose.
25. The same principles apply mutatis mutandis to the heads of the
component parts of the Union, as regards election, rights and duties,
discipline and maintenance.
26. No person shall be elected representative or member of the second
chamber in the Union Legislature; or Head or Deputy Head of the State;
or for holding any office, civil or military, in the Union of India; or in
any component part thereof, who is proved guilty of any offence against
the security of the State or the integrity erf the Union; or who, having
previously taken an oath of office as member of the Legislature, or as an
officer of the Union, civil or military, executive or judicial, or of any part
thereof, to support this Constitution, shall have engaged in insurrection
or rebellion against the Union of India, or given aid or comfort to the
enemies of the Union. If any election has actually taken place of any such
person election shall be deemed to be null and void ab initio.
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461
27. Any person found guilty of any such breach of oath after election or
appointment to such office shall be liable to be removed therefrom by vote
of the Legislature of not less than two-thirds of the total membership
concerned.
The Legislature may, however, by a majority of two-thirds of each
of the two Houses remove such a disability at any time after ten years
from the date the original vote was duly passed.
LEGISLATION, HOUSE OF THE PEOPLB’s REPRESENTATIVES
28. The legislative organ of the State in India shall consist of two
chambers. The first of these shall be styled and known as the House of
the People’s Representatives and the second shall be styled and known
as the House of the United States and Provinces. The House of the People’s
Representatives shall represent the adult citizens of the Union in all its
parts elected by adult franchise, on the basis of at least one representa¬
tive for every million of the population.
29. Where in any unit or component part of the Union, the population
falls below a million, such unit may combine with any of its neighbour
or neighbours, so as to bring up the aggregate strength of population to
the required figure, in order to enable them to elect a member or mem¬
bers between them to the House of the People’s Representatives.
30. The several units or component parts of the Union shall vote for
electing to the House of the People’s Representatives each by itself.
In any case, however, where the population of any component part, as
it exists, or under any redistribution of component parts that may take
(dace hereafter falls below the requisite minimum for electing one representa¬
tive, any such component part shall be entitled to group itself with any of
its neighbours so as to be able to elect a representative by such combination.
31. The right to vote and be elected shall be confined to natural born
citizens of India of sound mind and 18 years of age or over.
The right shall be absolute and unconditional, irrespective of any quali¬
fication, race, caste, creed, sex, colour, or property; but subject to the
rule that no one not a native born citizen or not resident in any part of
the Union for a whole year prior to the date of the election, shall be entitled
to vote or be elected representative in the Chamber of Representatives
of the Union or any component part thereof.
32. The second chamber of the Union Legislature shall consist of
representatives, in equal number (or proportion), of every component part
of the Union.
Any regrouping or redistribution of these shall require reallocation of
such representatives; provided that the total strength of the representa¬
tives of the component parts of the Union in the House of the United
States of India shall not exceed twice the total number of such parts.
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33. The representatives of every component part of the Union shall
be elected by the people of each component part as a whole. Every
resident of the component part concerned, being of sound mind and over-
18 years of age, shall be entitled to vote at any such election.
In addition to these, there shall be such other representatives not
exceeding IS, erf the minorities specified in Schedule I of the Constitution,
who are calculated ordinarily not to be able to secure direct representa¬
tion for themselves owing to the scattered nature erf their numbers, or
their numbers in any part falling below the minimum necessary to elect
a representative to the House of the People’s Representatives, and because
of the recognised importance of their part or contribution in the collec¬
tive life of the country.
34. The Constitution shall prescribe appropriate title or designation for
the Head of the State or the Chief Executive, as well as for each of the
chambers of the Union Legislature and of every component part thereof.
Pending such title, designation or nomenclature being prescribed by the
Constitution the above description shall be deemed sufficient.
35. The Legislature of the Union shall be entitled to make laws on all
subjects coming within, or relating to, the functions assigned by the Cons¬
titution to the Union, or those implied in or consequential from these
functions; or those deemed necessary and proper to the discharge of these
functions or any of them.
In the event of doubt, the House concerned shall be entitled to
consult the Supreme Court; and the advice erf that body shall be binding.
ECONOMIC COUNCIL
36. In addition to the two Houses of the Legislature mentioned above,
there shall be an Advisory Council, common to the whole Union, consist¬
ing of 150 members, being economic and scientific experts.
They shall be appointed by the Head of the State;
(a) one-third on the recommendation of both the Houses of the Union
Laitislature from among their own members; and
yb) the remaining from similar recommendation made by the respec¬
tive legislatures erf the several component parts of the Union or
groups thereof. The total membership of this Council shall not
exceed 150 who shall hold office for 3 years, one-third of the
members retiring by rotation every year and their place to be
filled in the same manner as in the first instance.
37. The functions of this Council shall be to examine any question
referred to that body from all standpoints and make recommendations on:
(а) The organisation and supervision of the internal and foreign trade
of this country;
(б) The fiscal policy, trade treaties, and financial matters;
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463
(c) Weights and measures;
(d) The domestic and international credit of the Union;
(e) Coinage and currency, including all substitutes for legal tender
currency;
(/) The banking organisation of the country including the Reserve
Bank and all other banks in India;
(g) Railway rates and fares and coordination of these on other forms
of transport;
(ft) Irrigation dues, road tolls, and other charges and expenditure in
connection with means of transport and communications;
(0 Any measures of taxation proposed in the budget or budgets whether
entirely new, or in the shape of changes in existing taxation;
( j ) The principles of compensation for any acquisition by the State of
any existing rights of private enterprises, public utilities and social
services;
( k) The organisation and management of State-owned enterprises;
(/) Labour legislation and laws regarding social welfare;
(m) Organisation of scientific or technical research;
(n) Patents and copyright;
(o) Any other matter falling in this group.
38. All recommendations of this Council shall be duly considered by
the Head of the State, the responsible Ministers and the Legislature before
any legislation on any subject mentioned in the preceding article is enacted
by the Legislature concerned.
39. This Council shall have no legislative or executive power or authority.
40. The Union Legislature or either chamber thereof shall be entitled
to consider all questions of general policy relating to those functions,
and to hold the Union Government or Minister of State as well as the
Head of the State responsible for their respective acts, policies or proposals.
41. The authority of the Union Government in legislating shall apply
to all citizens of India, whether natural bom or naturalised in the country
as well as to all places and parts of the country.
42. No legislation passed by the Legislature for the Union of India
shall be valid and binding unless and until the Head of the State for
the Union of India assents to it in the same form in which it has been
passed by the Legislature; provided that in the event of his assent being
withheld or refused by the Head of the State, and the Legislature
re-enacts the same measure in two successive years, by not less than a
majority of two-thirds of the votes of the members present and voting
on any such proposal in either chamber of the Legislature, such legisla¬
tion shall become effective and binding notwithstanding the continued
refusal of the Head of the State to assent thereto.
43. The Head of the State shall be entitled in the event of a sudden
emergency when the Legislature is not sitting to pass any Ordinance for the
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FRAMING OF INDIA’S CONSTITUTION
safety, integrity, peace or tranquillity of the Union or any part thereof,
and such Ordinance shall be valid and binding throughout the Union for
a period not exceeding six months from the date of its enactment, unless
in the meanwhile the Legislature re-enacts it in the same form or with
such modifications as it seems proper.
The legislative organ of the Union of India, or any component part
thereof, may consist of one chamber or two according as the Constitution
of that component part provides.
44. The Legislature in every component part of the Union shall be
constituted on the same general lines as the Union Legislature, and as
provided for by the Constitution of each component part of the Union. It
shall be vested with such powers, functions and authority as may be assigned
to it by the local constitution, without prejudice to the Constitution.
45. The legislative organ of the State in India shall alone be competent
to raise the funds necessary from time to time to carry out the day to
day administration of the Union (or any component part thereof) as well
as for ensuring its peace, safety and tranquillity by means of levying taxes,
fees or dues or rents, royalties from profits from State enterprise, in the
form of an annual budget.
46. An annual budget including provision for the maintenance of national
credit at home or abroad, for the Union as well as for every component part
thereof, shall be the sole concern of the House of the People’s Representa¬
tives, without any interference, amendments, or alteration by the other
chamber, wherever a second chamber exists, or by the Head of the State.
47. Subject to the foregoing, in all matters of law making, the power,
function and authority of either chamber of the Legislature where there
are two Houses shall be equal and identical.
48. The Rule of Law shall be supreme in the governance erf India, both
as regards the Union as well as any component part thereof.
49. No one shall be deprived erf life, liberty or property except under
due process of law.
50. Trial by jury shall be guaranteed in all courts of law throughout
the Union.
51. The Constitution shall lay down the fundamental rights and obligations
of the State, as well as of the citizens (as individuals or by groups). These
shall form an integral part of the Constitution and shall be treated as valid
and binding in every part of India.
EXBCtmVB
52. The executive organ of the State in India shall consist of the Head
nf the State in the Union of India and in every component part thereof,
together with the Council of Ministers for the Union as well as for every
component part thereof.
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465
53. The government or administration erf the country shall be in respon¬
sible charge erf a Minister of State and shall be carried on through such
departments as may be specified or instituted by the appropriate
Legislature for the Union of India, as well as for every component
part thereof.
54. All the Ministers of State in the Union as well as in every com¬
ponent part thereof, shall together form the Council of Ministers and
shall be collectively responsible to the appropriate Legislature for the
policy as well as particular acts erf administration.
55. Every department of the State in India, whether of the Union
Government, or of the Government of any component part thereof, shall
be assigned such duties, functions, powers and authority, as may be laid
down in tha Constitution, or in any Act of the Legislature setting up
such department; provided that the Head of the State shall be free to
make such combination, adjustment and division of work, as between
the several departments, as may seem necessary and proper to him in
the interests of efficient and smooth administration.
56. Every Minister of State shall be given charge of a department of
State by the Head of the State, who shall name one of these Ministers
of State to be the Prime Minister.
57. The Head of the State shall select the Ministers and name the
Prime Minister from among the members of the party commanding a
majority in the People’s House of Representatives; provided that in any
time of national or local emergency, or when parties in the People’s House
of Representatives are equally balanced, it shall be open to him to select
the Ministers of State, including the Prime Minister, from among such
coalition parties as may be commanding a majority of votes in the
People’s House of Representatives,
58. The executive in every component part of the Union of India shall
ordinarily follow the same pattern, as in the Union of India, as regards
appointment or election, powers and functions and responsibility.
JUDICIARY
59. The judicial organ of the State in India shall consist of a Supreme
Court of Judicature for the Union of India, which shall be sovereign in
its allotted sphere, together with such High Courts and subordinate
courts, both civil and criminal, with original and appellate jurisdiction,
admiralty, matrimonial and other ordinary and extraordinary jurisdiction, as
the Constitution may provide.
60. The Supreme Court shall be established and shall function in every
part of the Union.
61. The State in India being a wholly secular organisation, there shall
be no ecclesiastical jurisdiction in any tribunal.
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FRAMING OF INDIA’S CONSTITUTION
The principal function of the judicial organ of the State in India shall
be to interpret the Constitution and administer justice in accordance with
law and equity.
62. Except in so far as statute law may modify the personal law of
any community in India, the personal law shall be the same as has
hitherto been applied in respect of each several community. The other
civil and criminal law and procedure codes shall likewise be the same
as are in use at present, until modified or amended hereafter, provided
that the writ shall run in the name of the people only.
63. Judges of the Supreme Court of Judicature shall be appointed, in
such manner and numbers, and with such salaries, emoluments allowances
and pensions, as may be prescribed from time to time by Act of the Union
Legislature.
64. Every appointment of a judge of the Supreme Court shall be for life,
unless otherwise ordained and provided for by Act of the Union
Legislature.
65. Judges of the Supreme Court shall be appointed from among
practising lawyers of prescribed standing, judges of High Courts and other
judicial officers of the Union, or in any component part thereof or from
among professors of law or jurisprudence by the Head of the State; provided
that the Union Legislature may, by a majority of two-thirds of the
members present and voting, order the removal of any judge or judicial
officer on grounds of proved offence against the safety, security or
tranquillity of the Union, proved misconduct, incurable illness, establish¬
ed infirmity of mind or body, and consequent incapacity or violation of
the oath of office.
66. The judicial organ of the State in India shall be wholly independent,
and co-equal of the legislative and the executive, in power, function and
authority. In no case shall any judicial function, power or authority be
vested in any administrative or executive officer, body or authority.
67. There shall be a complete separation between the judicial and exe¬
cutive functions, except as provided in the Constitution.
68. In addition to the judges of the Supreme Court, of the High Courts,
and other subordinate judicial tribunals, as well as other judicial officers,
there shall be in and for the Union of India an Advocate-General,
appointed by the Head of the State, and charged with the legal work of
the State in India. Corresponding to the judicial organisation for the
Union of India, there shall be, for each component part of the Union,
or for each group thereof, such High Courts with ordinary and extra¬
ordinary, original and appellate, civil and criminal, admiralty and matri¬
monial jurisdiction, as the Constitution of each component part or group
thereof provides.
69. In addition to the High Courts, there shall be in each component
part of the Union, or group of parts, such other subordinate courts.
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467
original as well as appellate, civil and criminal, as the Constitution of the
part or the group provides.
70. The power, functions and jurisdiction of each such court or tribunal
shall be prescribed by Act of the Legislature of the part or group concerned.
71. In addition to Judges of High Courts and of other Courts, as well as
other judicial officers, there shall be an Advocate-General appointed by
the Chief Executive or Head of the State in the part concerned, or, by
agreement, in the combining parts in a group, and charged with the legal
work of the part or group concerned.
72. In addition to judges, judicial officers. Advocates-General, there may
be such other administrative, clerical, and subordinate officers and servants
in the Judicial Department of the Union, or of any component part or
group thereof, as an Act of the appropriate Legislature may from time
to time prescribe.
73. The same Legislature shall also lay down, or authorise the Chief
Executive to lay down, the terms and conditions of appointment and ser¬
vice, grades, rules of discipline of all such officers and servants, as well
as the mode of making and the authority to make the appointment in the
first instance and to regulate promotions, transfers, retirement; provided
that, once appointed, no judicial officer can be removed from his post
except for reasons mentioned in article 65.
74. Any judge or judicial officer may at any time resign his office by letter
addressed to the authority entitled to appoint to that office; and cm
acceptance of the resignation the officer shall be relieved and his post
declared vacant.
75. The budget provision for the salaries, allowances and pensions of
judges shall not be voted upon every year, but shall be treated as part of
the budget duly passed.
THE CIVIL AND DEFENCE SERVICES
76. The public service of the State in India, whether for the Union or
for any component part thereof, in every department of State, civil or
military, administrative, executive or judicial, shall be organised and esta¬
blished by Act of the Legislature, in such grades, and on such terms and
conditions of service and rules of discipline, as a specific Act of the Union
Legislature, or of the Legislature of any part of the Union concerned,
provides.
77. Except Ministers of State, judges of the Supreme and High Courts,
ambassadors or any other class of officers specifically excluded from the
operation of this article, all appointments to the public service in India
and in every department shall be, subject to the Constitution of the Union,
made in the first instance, exclusively on grounds of merit or stated quali¬
fications, as shown in each case by open competitive public examination
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FRAMING OF INDIA’S CONSTITUTION
78. The competitive examination for recruitment to public service shall
be conducted by a Public Service C ommis sion consisting of a Chairman
and three members, appointed by the Head of the State in accordance with
the law governing public service. Members of the Public Service Commission
shall be treated cm a par with judges as regards independence in their
functions and once appointed shall not be removed from their office except
for any of the reasons stated in article 65.
79. The Public Service Commission shall be entitled to make such rules
for admission to these examinations, the subjects to be examined in, fees
for admission, if any, and any other matter pertaining to recruitment, as
may be prescribed from time to time by Act of the Legislature concerned.
80. All appointments being initially made on grounds of proved merit
or qualification, there must be no room for influence or canvassing which
shall be a disqualification for appointment.
81. All scope for personal patronage in appointments to the public ser¬
vice of the State in India, whether by the Head of the State or by the
Chief Executive or Chief Justice in any part of the Union, by a Minister
of State or by any head of department, shall, as far as possible, be eliminated
and disallowed.
82. The native citizens of India shall alone be appointed to any post in
the public service, subject to such exceptions in favour of temporary
appointment of technical specialists, as an Act of the Legislature may provide.
83. The Head of the State shall be the head of the public service in
India.
CONSCRIPTION
84. In any case where conscription of the entire man-power of the State
in India becomes necessary to provide for the adequate defence of the
Union or any part thereof; or to carry out some nationwide programme of
social utility, an Act of the Union Legislature shall be necessary to define
the terms and conditions on which such conscription may be ordered, and
the period for which it shall be maintained.
RULES UNDER THE CONSTITUTION
85. In order to give effect to the letter as well as the spirit of the
Constitution, or the Constitution of any part of the Union of India, or the
agreement made by any two or mote of such parts to group themselves
and act in concert; as also to give effect to the laws made from time to
time by the Union Legislature or the Legislature of any part of the Union,
the Head of the State for the Union of India, or the chief executive authority
in any part thereof, shall be entitled to make rules, or Ordinances, within
the scope of the Constitution being made.
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86. All such rules, or ordinances or by-laws or legislation authorizing
such rules, ordinances or by-laws shall have the same force and validity
as any other Act of a Legislature, unless amended by the rule-making
authority or declared invalid by a competent tribunal; provided that no
such rule or Ordinance shall be held valid six months after the date of
its enactment, unless specifically extended by the Legislature, or re-enacted
as Act of the Legislature.
ORDINANCES
87. The Head of the Union, and the chief executive for any component
part thereof, shall be entitled to make Ordinances to deal with any sudden
emergency like a war, earthquake, epidemic, or any other similar natural
or man-made calamity; provided that no such Ordinance shall have validity
for more than six months from the date of its enactment; and provided
further that any such! Ordinance may be re-enacted or repealed or declared
to be null and void by an Act of the Legislature concerned at any time
during the currency of the Ordinance.
88. Unless and until any such Ordinance is repealed, or declared null
and void, by an Act erf the appropriate Legislature, the Ordinance shall
have the same binding force and effect as an Act of the Legislature; and
all acts done thereunder shall be deemed to be due process of law.
89. Any officer or public servant, doing any act in good faith and in
accordance with such an Ordinance, shall be held to have acted lawfully,
in the normal dischaige of his public duty, and shall be fully indemnified
against any consequences of such lawful action.
AMENDMENTS OF THE CONSTITUTION
90. This Constitution ordained and established by and in the name of
the people of India and with their authority for the Union of India is
open to revision from time to time in accordance with the following pro¬
cedure viz :
91. Every proposal for the amendment or revision of the Constitution
or any part thereof, shall be initiated in the Legislature of the Union,
except as regards the redistribution of the boundaries of any existing
component part or parts of the Union and except as regards the fundamental
rights and obligations of citizens.
92. In the latter case, proposals for changing the boundaries, or redis¬
tributing the areas, or regrouping the units, shall be initiated by and in
the Legislature of the unit or units concerned and shall be placed before
the Union Legislature if adopted by a majority of two-thirds of the total
members of either House of the Legislature of die units concerned.
93. No alteration or amendment of the guaranteed fundamental rights
31
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FRAMING OF INDIA'S CONSTITUTION
of citizens, or minorities, shall be made, except by a direct reference to
the people of the Union, made at the instance of the Head of the State;
and if accepted by a majority of at least two-thirds of the total adult
citizens or members of the minorities concerned, the same shall be com¬
municated by the Head of the State to the Union Legislature, who shall
then propose the necessary amendment to the Constitution; and thereafter
the same procedure shall be followed as laid down in article 94.
94. No amendment of this Constitution shall be made, unless proposed
in the Legislature of the Union, and adopted by a majority of three-fifths
of the total membership in either House of the Legislature, and agreed to
by the Head of die State.
95. An amendment thus adopted shall not be deemed to have been duly
made effective until it is referred to the Legislatures of all the component
parts of the Union, and approved by two-thirds at least of such Legisla¬
tures, and by a majority of two-thirds at least of the total membership
of the Legislature, or either House of the Legislature in every case where
there are two Houses; and notified to the Head of the State as having been
duly approved.
96. If the requisite majority is not forthcoming within two years of the
date when the Union Legislature and the Head of the State had accepted it,
the Head of the State may refer the proposed amendment to the adult
voters of the component part or parts of the Union concerned; and on
approval by a majority of the voters thus appealed to, the amendment shall
be declared to have been duly adopted and made part of the Constitution.
97. Any amendment to the Constitution may be proposed by any Legis¬
lature of any component part of the Union; and if duly adopted in that
Legislature, as provided for in the paragraph next preceding, it shall be
placed before the Union Legislature, whereupon the same procedure shall
be followed till the amendment is duly adopted and made part of the
Constitution, or allowed to drop.
98. Every amendment duly passed shall be recorded in die Supreme
Court of Judicature as part of the Constitution.
99. Schedules attached to the Constitution shall be deemed to be parts of
the Constitution.
100. The Head of the State shall be the custodian of the Constitution;
the Union Legislature, its preserver; and the Supreme Court, its inter¬
preter.
(n) MEMORANDUM ON THE UNION CONSTITUTION AND DRAFT
CLAUSES PREPARED BY THE CONSTITUTIONAL ADVISER
May 30, 1947
Replies to the questionnaire supplied to members of the committee
have been received from only one member (Sardar K. M. Panikkar).
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
471
Another member (Professor K. T. Shah) has sent in a memorandum
embodying general directives as well as a Draft Constitution. I have not,
therefore, found it possible, as directed by the committee, to prepare a
memorandum embodying what may be called the greatest common measure
of the views of the several members. In these circumstances, the best course
seemed to me to be to prepare an independent memorandum for the
consideration of the committee. Such a memorandum together with a detailed
draft of as many of the proposed provisions as could be usefully drafted
at this stage, is submitted herewith.
(a) Memorandum
We, the people of India, seeking to promote the common Preamble.
good, do hereby, through our chosen representatives, enact,
adopt and give to ourselves this Constitution.
PART I
Union Territory and Jurisdiction
1. The Union hereby established shall be a sovereign
independent State known as the Union of India and shall
embrace all the territories included in India under the Gov¬
ernment of India Act, 1935; but save as otherwise provid¬
ed by or under treaty or agreement, only the territories
included for the time being in Schedule I shall be subject
to the jurisdiction of the Union.
[Note: The first part of this clause proceeds on the basis of
the Cabinet Mission’s Plan of May 16, 1946, according to which
there should be a Union of India embracing both British India and
the States. The second part is necessitated by the subsequent
modification of that plan, accocding to which the Constitution is
not to be forced upon “unwilling parts of the country”. Schedule
I, in its initial form, is intended to specify the “willing parts” at
the date of the coming into operation of the Constitution. If any
other territories elect to come within Union jurisdiction later, the
schedule is to be modified accordingly [see the next clause). The
clause may be compared with articles 2 and 3 of the Constitution
of Ireland. The parts of India not specified in the schedule are in
the Union, but not of it.]
2. The Parliament of the Union may from time to time
by Act include new territories in Schedule I upon such
terms as it thinks fit.
3. The Parliament of the Union may by Act with the
consent of the Legislature of every province affected there¬
by—
(a) create a new Province;
Name and
territory
of Union.
Admission of
new terri¬
tories.
Creation of
new Pro¬
vinces and
alteration of
Provincial
boundaries.
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FRAMING OF INDIA’S CONSTITUTION
Jurisdiction
in the
Scheduled
Territories,
Citizenship.
(b) increase the area of any Province;
(c) diminish the area of any Province;
(d) alter the boundaries of any Province;
and may with the like consent make such incidental and
consequential provisions as it may deem necessary or
proper.
4. The authorities established by or under this Constitu¬
tion shall succeed to the jurisdiction and powers of His
Majesty in the Scheduled Provinces; and to the powers
and jurisdiction of the Ruler in each Scheduled State to
the extent to which he has ceded them.
SCHEDULE I
TERRITORIES SUBJECT TO THE JURISDICTION OF THE UNION
I. Governors' Provinces
Madras
Bombay
Bengal or West Bengal(?)
The United Provinces
Bihar
The Punjab or East Punjab(?)
The Central Provinces (and Berar?)
Assam (minus Sylhet?)
N. W. F. Province (?)
Orissa
Sind(?)
II. Chief Commissioners' Provinces
Delhi
British Baluchistan(?)
Ajmer-Merwara
Coorg
The Andaman & Nicobar Islands
Panth Piploda
III. Indian States
[Here enumerate the acceding Indian States :
(1) Single States, (2) Groups of States.]
PART n
Citizenship
1. At the date of commencement of this Constitution,
every person domiciled in the territories included within
the Union and subject to its jurisdiction—
(a) who has been ordinarily resident in those territories
for not less than five years immediately preceding
that date, or
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473
(b ) who, or whose parents, or either of whose parents,
was or were born in India
shall be a citizen of the Union:
Provided that any such person being a citizen of any
other State may, in accordance with Union law, elect not
to accept the citizenship hereby conferred.
2. After the commencement of this Constitution—
(a) every person who is born in the territories included
within the Union and subject to its jurisdiction.
( b ) every person who is naturalized in accordance with
Union law, and
(c) every person, either of whose parents was, at the
time of such person’s birth a citizen of the Union,
shall be a citizen of the Union.
3. Further provisions governing the acquisition and
termination of Union citizenship may be made by Union
law.
[Note: Cf. art 3 of the Constitution of the Irish Free State
(1922) which runs—
“Every person, without distinction of sex, domiciled in the
area of the jurisdiction of the Irish Free State at the time
of the coming into operation of this Constitution, who was
bom in Ireland or either of whose parents was bora in
Ireland, or who has been ordinarily resident in the area of
the jurisdiction of the Irish Free State for not less than
seven years, is a citizen of the Irish Free State and shall,
within the limits of the jurisdiction of the Irish Free State,
enjoy the privileges and be subject to the obligations of
such citizenship: Provided that any such person being
a citizen of another State may elect not to accept the
citizenship hereby conferred; and the conditions
governing the future acquisition and termination of
citizenship in the Irish Free State shall be determined by
law.”
Clause 1 is on the lines of the above provision, except that a
period of five years has been substituted for seven years in
accordance with s. 3(lXc) of the Indian Naturalization Act
(VII of 1926).
The clause has had to be drafted with due regard to the
possibility that initially at least the Union may not exercise
jurisdiction over the whole of India.
A person born in India and domiciled in Bombay, who happens
to be resident in London at the commencement of the new Con¬
stitution, will be a citizen of the Union under this clause; but not
one domiciled in Baluchistan, if the Union does not initially
exercise jurisdiction there.
Clause 2 follows the provision suggested by the ad hoc com¬
mittee: it is not absolutely necessary, if we are content to leave
the matter to Union law under clause 3.]
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FRAMING OF INDIA’S CONSTITUTION
Fundamental
Rights .
Head of
the Union .
Term of
office .
Removal
from
office •
PART III
Fundamental Rights including Directive Principles of State
Policy
[Here enumerate fundamental rights and principles of State
policy as passed by the Constituent Assembly.]
PART IV
Chapter l
The Union Executive
1. The head of the Union shall be the President, to be
elected by the two Houses of the Union Parliament at a
joint session by secret ballot, according to the system of
proportional representation by the single transferable vote.
[Note: Since the President, under the proposed Constitution, is
intended merely to be a constitutional head, it seems unnecessary
to provide for his election by direct vote of the people of the
Union. Such an elaborate process might be appropriate for an
all-powerful head like the President of the U.S.A. For a respon¬
sible head, we may content ourselves with the Swiss or French
glan of election by the two Houses of the Legislature.]
2. (1) The President shall hold office for five years, ex¬
cept in the event of death, resignation or removal.
(2) The President may be removed from office for mis¬
behaviour or infirmity of mind or body by a resolution
of each of the two Houses of the Union Parliament sup¬
ported by not less than two-thirds of the total member¬
ship of each House.
(3) The President shall be eligible for re-election once,
but only once.
[Note: Since under this Constitution it is proposed that the
maximum term of the House of Representatives is to be five
years and the President is to be elected by both Houses, the
President’s term of office has also been fixed at five years.
In the U.S.A., the President is removable from office on im¬
peachment for, and conviction of, treason, bribery or other high
crimes and misdemeanours. The House of Representatives has
the sole power of impeachment and the Senate has the sole power
to try all impeachments. There can be no conviction without the
concurrence of at least two-thirds of the members of the Senate
present In Ireland, the President may be impeached for stated
misbehaviour; the charge can be preferred by either House of
Parliament, but requires the support of not less than two-thirds of
the total membership of the House concerned. The other House
investigates the charge; a conviction requires the support of not
less than two-thirds of the total membership of the investigating
House. The resolution embodying the conviction operates to
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
475
remove the President from his office. Sub-clauses (1) and (2)
are based on the U.S.A. and Irish precedents (omitting the
impeachment procedure); sub-clause 3 is taken from the Irish
Constitution.]
3. Every citizen of the Union who has reached his
35th year of age shall be eligible for election as President.
[Note: This is taken from the Irish Constitution.]
4. The President shall not be a member of either House
of the Union Parliament and if a member of either House
be elected President, he shall be deemed to have vacated
his seat in that House.
[5. Appropriate provision should be made for bye-elec¬
tions in the event of a casual vacancy, the detailed
procedure for elections and bye-elections being left to be
regulated by Act of the Union Parliament.]
6. (1) In the event of the absence of the President or
of his death, resignation, removal from office or incapacity
or failure to discharge his functions, his functions shall be
discharged by a commission consisting of (/) the Chief
Justice of the Supreme Court; (it) the Chairman of the
Senate; and (iii) the Speaker of the House of Representa¬
tives.
(2) The Council of State may, by a majority of its
members, make such provision as they think fit for the
discharge of the functions of the President in any unfore¬
seen contingency.
[Note: In the U.S.A., there is a Vice-President who is elected
in the same way as the President The Vice-President automatically
becomes the President upon the President’s death or resignation or
removal from office and, meanwhile, he functions ex-officio as the
President of the Senate. If we were to adopt a similar plan under
this Constitution, we should have to say that the two Houses of
the Union Parliament sitting together must elect a President and
a Vice-President, the Vice-President then becoming the ex-officio
Chairman of the Senate. This would mean that the Chairman of
the Senate is to be elected by the two Houses in joint session, which
seems inappropriate. Nor would it be appropriate to adopt the
reverse plan and to make the Chairman of the Senate ex-officio
Vice-President, considering that the President is the choice of both
Houses sitting together. Moreover, in an executive of the parlia¬
mentary type, there is hardly any room for a Vice-President
between the President and the Prime Minister. In these circum¬
stances, the best course would appear to be to copy the Irish plan
of having a Commission instead of a Vice-President to discharge
the President's functions during a casual vacancy. This is what
has been done in the draft
It will be noticed that there is a reference to the ''Council of
State” in sub-clause 2. This institution also has been borrowed
Age quali¬
fication .
President not
to be a
member of
either
House .
Provision
for bye-
elections.
Commission
to discharge
President's
functions
in certain
events .
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FRAMING OF INDIA’S CONSTITUTION
Functions
of Presi¬
dent •
Extent of
executive
authority
of the
Union .
A dministration
of Union
affairs.
from the Irish Constitution. It is a kind of Privy Council to aid
and advise the President on matters of national importance in the
decision of which any party bias has to be avoided. The Council
of State consists of the Prime Minister, the Deputy Prime Minister,
the Chief Justice of the Union, the Speaker of the House of
Representatives, the Chairman of the Senate, the Advocate-General,
every ex-President, every ex-Prime Minister, every ex-Chief Justice
and a limited number of other persons to be appointed by the
President in his absolute discretion. It is a non-party Council of
elder statesmen including judges. Such a Council may be found
useful in India in such matters as the protection of minorities, the
supervision, direction and control of elections and the appointment
of judges of the Supreme Court and the High Courts.]
7. Subject to the provisions of this Constitution, the
executive authority of the Union shall be exercised by
the President; but this shall not prevent the Union Parlia¬
ment from conferring functions upon any court, judge or
officer or any local or other authority.
8. Subject to the provisions of this Constitution, the
executive authority of the Union shall extend to the mat¬
ters with respect to which the Union Parliament has power
to make laws and to any other matters with respect to
which authority has been conferred on the Union by any
treaty or agreement.
9. The executive authority of the Ruler of a Scheduled
State shall continue to be exercisable in that State even
with respect to Union subjects, save as taken away by
Union law.
[Note: Like the corresponding provision in section 8(2) of the
Government of India Act of 1935, this clause gives the Rulers of
Indian States, who have acceded to the Union, concurrent executive
power even in Union subjects, save as taken away by Union law.
In this respect, the position of the provincial units is rather
different; they have no executive power in respect of Union sub¬
jects save as given by Union law. Such a provision is necessary,
for, otherwise all statutory powers in respect of Union subjects
will come to an end in the acceding States upon the commencement
of this Constitution.]
10. There shall be a Council of Ministers, with the
Prime Minister at the head, to aid and advise the Presi¬
dent in the exercise of his functions, except in so far as
he is required by this Constitution to act in his discretion.
[Note: Although under responsible government the head of the
State acts for the most part on the advice of Ministers responsible
to the Legislature, nevertheless there are certain matters in which
he is entitled to exercise his own discretion: e.g., (in certain events)
in the choice of a Prime Minister and in the dissolution of Parlia¬
ment In India, such matters as the appointment of judges, the
protection of minorities and the suppression of widespread
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NOTES BTC. TO TUB UNION CONSTITUTION COMMITTEE
479
the superintendence, direction and control of elections. It may be
pointed out that the impartial delimitation of constituencies and
the readjustment of representation after every census are regarded
as so important that in South Africa it is entrusted to a Com¬
mission consisting of three judges of the Supreme Court In
Canada, the members of the Opposition are associated with the
members of the Government in this matter so as to prevent
gerrymandering. Clearly, therefore, an agency free from party
bias is required for this purpose. Dr. Ambedkar was very parti¬
cular that the superintendence, direction and control of all elections
should be vested in a non-party Commission.]
Chapter III
The Union Parliament
23. The legislative power of the Union shall be vested Constitution
in the Parliament of the Union which shall consist of the
President and two Houses, the Senate and the House of Parlia -
Representatives. ment "
24. (1) (a) The Senate* shall consist of not more than
168 representatives of the Provinces and not more than
112 representatives of the Indian States;
(b) The House of Representatives shall consist of re¬
presentatives of the Provinces and of the Indian States or
groups of States (as the case may be) included in Schedule
I in the proportion of not less than one representative for
every million of the population and not more than one
representative for every 750 thousands of the population.
The ratio between the number of members to be elect¬
ed at any time for each constituency and the population
of that constituency, as ascertained at the last preceding
census shall, so far as it is practicable, be the same through¬
out the territories subject to the jurisdiction of the Union.
(2) The said representatives shall be chosen in accor¬
dance with the provisions in that behalf contained in
schedule...
(3) Upon the completion of each decennial census, the
representation erf the several Provinces and Indian States
or groups of Indian States in the House of Representatives
shall be readjusted by such authority, in such manner and
from such time as the Union Parliament may by Act
determine:
Provided that such readjustment shall not take effect
until the dissolution of the then existing House of Repre¬
sentatives.
*For detailed allocation of seats in the Senate, see Table of
Seats at the end.
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FRAMING OF INDIA'S CONSTITUTION
(4) The Senate shall be a permanent body not subject
to dissolution, but as near as may be one-third of the
members thereof shall retire in every third year in accor¬
dance with the provisions in that behalf contained in
schedule...
(5) Every House of Representatives, unless sooner dis¬
solved, shall continue for five years from the date appoint¬
ed for its first meeting and no longer, and the expiration
of the said period of five years shall operate as a dissolu¬
tion of the House of Representatives.
[Note : In all the principal federations of the world, the Lower
House is elected on a population basis, the precise proportion of
the number of representatives to the population varying from
federation to federation. The composition of the House of
Representatives proposed above follows that of the Constituent
Assembly. The composition of the Senate follows, as far as
possible, that of the Council of State in the Government of India
Act of 1935. The Council of State under that Act consists of 156
representatives of British India plus not more than 104 representa¬
tives of the Indian States. These figures are in the proportion of
3:2. Retaining the quantum of representation given to the several
States or groups of States in the Act, with slight readjustments
(so as to fit the new groups adopted for the Constituent Assembly),
we find that the maximum number of representatives for the
Indian States is 112; proportionately, the maximum number of
representatives for the Provinces should be 168. Under this plan,
therefore, the maximum strength of the Senate is 280 and that of
the House of Representatives (on the census of 1941) is 389. The
corresponding figures under the Government of India Act
of 1935 are 260 and 357 which are roughly in the same
proportion.
Whether there should be an Upper House at all and, if so, on
what principles it should be constructed, are fundamental questions
which always arouse keen controversy. The above draft merely
follows the Government of India Act of 1935 as being perhaps the
line of least resistance. I have not attempted to give all the units
equal representation in the Senate, because under present conditions
this might mean that the Provincial representatives, or to use a
convenient term the British Indian representatives, would be
swamped by the representatives of the States. It should be re¬
membered that there are 35 potential Indian States units in the
Union and at present there are only 11 British Indian units ex¬
cluding Chief Commissioners’ Provinces. It might be possible to
differentiate between the units by providing that a unit without
responsible government should have, say, three representatives in
the Senate, while a unit with responsible government should be
represented, say, by 15 representatives. It is doubtful whether
such a scheme would be acceptable. An alternative which might
be worth considering is a Senate with functional representation as
in Ireland.]
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481
25. The provisions for the summoning, prorogation and
dissolution of Parliament, the relations between the two
Houses, the mode of voting, the privileges of members,
disqualifications for membership, parliamentary procedure,
including procedure in financial matters, etc., shall be on
the lines of the corresponding provisions in the Govern¬
ment of India Act of 1935.
26. In the Union Parliament, business shall be transacted
in Hindustani (Hindi or Urdu) or English, provided that
the Chairman or the Speaker, as the case may be, may
permit any member who cannot adequately express him¬
self in either language to address the House in his mother
tongue. The Chairman or the Speaker, as the case may
be, shall make arrangements for giving the House, when¬
ever he thinks fit, a summary of the speech in a language
other than that used by the member and such summary shall
be included in the record of the proceedings of the House.
[This follows the corresponding provision in the Cons¬
tituent Assembly Rules.]
Summoning,
prorogation
and dissolu¬
tion of
Parliament,
etc.
Language.
TABLE OF SEATS
The Senate
ALLOCATION OF SEATS
(/) Representatives of British India
Province No. of Seats
Madras
24
Bombay
19
Bengal
24
/East Bengal 17
\ West Bengal 7
United Provinces
24
Puqjab
19
/West Punjab 11
\East Punjab 8
Bihar
19
Central Provinces
9
/ Bcrar 2
\Rest 7
N. W. F. Province
6
Assam
6
/North Assam 4
\ Sylhet 2
Orissa
6
Sind
6
British Baluchistan
2
Delhi
2
Ajmer-Merwara
1
Coorg
1
Total
168
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FRAMING OF INDIA'S CONSTITUTION
(//) Representatives of Indian States
Division as shown in
the Table of Seats
appended to part II
of the first schedule
to the Govt, of India
Act, 1935
Name of State
No. of Seats
A—SINGLE STATES
I
Hyderabad
5
II
Mysore
3
m
Kashmir
3
IV
Gwalior
3
V
Baroda
3
IX
Travancore
2
IX
Cochin
2
X
Udaipur
2
X
Jaipur
2
X
Jodhpur
2
X
Bilcaner
2
X
Alwar
1
X
Kotah
i
XI
Indore
2
XI
Bhopal
2
XT
Rewa
2
XIII
Kolhapur
2
XIV
Patiala
2
XIV
Bahawalpur
2
XVI
Mayurbhanj
1
Total 44
Division
Names of the States
in the group
No. of Seats
B—FRONTIER GROUPS
VI
Kalat 1
Las Bela l
A
Kharan f
•f
XIV
Khairpur J
VII
Sikkim \
ey
XV
Cooch-Behar j
XV
Tripura 'l
XV
Manipur >
XVII
Khasi States J
L
XVII
Amb 1
XVII
Chitral f
XVII
Dir J-
1
XVII
Swat \
l
XVII
Phulra J
Total 9
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NOFBS BTC. TO THB UNION CONSTITUTION COMMITTEE
483
Division
Names of the States
in the group
C—INTERIOR GROUPS
VIII
Rampur
Banarcs
X
Bharatpur
Tonk
Dholpur
Karauli
Bundi
Sirohi
1
1
i
(13 States)
Dungarpur
Banswara
Partabgarh
Jhalawar
Jaisalmer
Kishengarh
y
i
XI
Shahpura
XI
Datia
Orchha
Dhar
Dewas (Senior)
Dewas (Junior)
Jaora
Ratlam
Panna
Samthar
Ajaigarh
Bijawar
Charkhari
(26 States)
Chatarpur
Baoni
Nagod
Maihar
Baraundha
Barwani
All Raipur
Jhabua
Sailana
Sitamau
Rajgarh
Narsingarh
Khilchipur
y
XVIi
Kurwai
II
XII
Cutch
Idar
Nawanagar
Bhavnagar
Junagadh
Dhrangadhra
Oondal
Porbandar
►
(16 States)
Morvi
Radhanpur
Wankaner
Palitana
Dhrol
Limbdi
Wadhwan
Rajkot
No-of Seats
11
11
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484
framing of India's constitution
Division
Names of the States
in the group
xn-A
Rajpipla
Palanpur
Cambay
Dharampur
Balasinor
Baria
Chhota Udepur
(15 States)
Sant
Lunawada
Bansda
Sachin
Jawhar
Danta
XIII
Janjira
Jafrabad
XIII
Sangli
Savantvadi
Mudhol
Bhor
Jamkhandi
Miraj (Senior)
Mi raj (Junior)
Kurundwad (Senior)
(17 States)
Kurundwad (Junior)
Akalkot
Phaltan
Jath
Aundh
Ramdurg
IX
Pudukottai
Banganapalle
Sandur
XIV
Kapurthala
Jind
Nabha
Mandi
Bilaspur
Suket
Tehri-Garhwal
(14 States)
Sirmur
Chamba
Faridkot
Malcrlcotla
Loharu
XVII
Kalsia
Bashahr
XVI
Sonepur
Patna
Kalahandi
Keonihar
Dhenkanal
Nayagarh
Tafcher
(25 States)
Nilgiri
Gangpur
Bamra
Seraiktia
Baud
Bonai
No. of Seats
5
5
7
4
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
485
Division
Names of the States
in the group
No. of Seats
XVII
Athgarh
Pal Lahara
Athmalik
Hindol
Narsingpur
Baramba
Tigiria
Khanpara
Ran pur
Daspalla
Rairakhol
Kharsawan J
XVI-A
(14 States)
XVII
Bastar
Surguja
Raigarh
Nandgaon
Khairagarh
Jashpur
Ranker
Korea
Sarangarh
Changbhakar
Chhuikhadan
Kawardha
Sakti
Udaipur
” 3
XVII
All other States
2
59
Total for Indian States 112
Grand Total for India 280
Chapter IV
Legislative Power of the President
27. (1) If at any time, when the Union Parliament is
not in session, the President is satisfied that circumstances
exist which render it necessary for him to take immediate
action, he may promulgate such Ordinances as the circum¬
stances appear to him to require.
(2) An Ordinance promulgated under this section shall
have the same force and effect as an Act of the Union
Parliament assented to by the President, but every such
Ordinance
(a) shall be laid before the Union Parliament and shall
cease to operate at the expiration of six weeks from
the reassembly of the Union Parliament, or, if before
the expiration Of that period resolutions disap¬
proving it are passed by both Houses, upon the pass¬
ing of the second of those resolutions; and
Power of
President to
promulgate
Ordinances
during
recess of
Parliament.
32
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486
FRAMING OF INDIA'S CONSTITUTION
Supreme
Court .
Auditor-
General .
Functions of
Auditor-
General.
( b) may be withdrawn at any time by the President.
(3) If and so far as an Ordinance under this section
makes any provision which the Union Parliament would
not under this Constitution be competent to enact, it shall
be void.
[Note: The Ordinance-making power hat been the subject of
great criticism under the present Constitution. It must, however,
be pointed out that circumstances may exist where the immediate
promulgation of a law is absolutely necessary and there is no time
in which to summon the Union Parliament Speaking from memory.
Lord Reading found it necessary to make an Ordinance abolishing
the cotton excise duty when such action was immediately and
imperatively required in the interests of the country. The President
who is elected by the two Houses of Parliament and who has
normally to act on the advice of Ministers responsible to Parliament
is not at all likely to abuse any Ordinance-making power with
which he may be invested. Hence the proposed provision.]
Chapter V
The Union Judicature
28. There shall be a Supreme Court in the Union with
powers and jurisdiction as recommended by the ad hoc
Committee on the Union Judiciary.
[Note: The ad hoc Committee on the Supreme Court has
observed that it will not be expedient to leave the power of
appointing judges of the Supreme Court to the unfettered discretion
of the President of the Union. They have suggested two alterna¬
tives, both of which involve the setting up of a special panel of
eleven members. According to one alternative, the President, in
consultation with the Chief Justice, is to nominate a person for
appointment as puisne judge and the nomination has to be con¬
firmed by at least seven members of the panel. According to the
other alternative, the panel should recommend three names, out
of which the President, in consultation with the Chief Justice, is
to select one for the appointment. The relevant section in the
draft clauses adopts substantially the first alternative, utilising at
the same time the Council of State for this purpose. It will be
noticed that the Council of State includes the Chief Justice among
its members and its composition is such as to secure freedom from
party bias. It should, therefore, be a satisfactory substitute for
the panel recommended by the ad hoc committee.]
Chapter VI
Auditor-General of the Union
29. There shall be an Auditor-General of the Union who
shall be appointed by the President and shall only be
removed from office in like manner, and on the like
grounds, as a judge of the Supreme Court.
30. The duties and powers of the Auditor-General shall
follow the lines of the corresponding provisions in the
Government of India Act of 1935.
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487
Chapter VII
Public Service Commission
31. There shall be a Public Service Commission for the
Union whose composition and functions shall follow the
lines of the corresponding provisions in the Government
of India Act of 1935.
Chapter VIII
Union Railway Authority
32. In the Government of India Act of 1935. there is
a Part providing for the establishment of a Federal Rail¬
way Authority. This Part of the Act has never come into
force, and the question is whether we should make pro¬
vision for a Union Railway Authority. Until a decision
is arrived at on this point, it has not been considered
necessary to draft any specific provisions.
Chapter IX
Union Defence Council
33. In most of the Dominions, there is no Commander-
in-Chief, but instead there is a Defence Council. In Canada,
there is a Defence Council consisting of the Minister
(President), the Deputy Minister (Vice-President), the Chiefs
of the General and Naval Staffs, the Quarter Master-General
the Director of the Royal Canadian Air Force and certain
other members. In Australia, there is a Council of Defence
with the Prime Minister as President, for coordinating
defence policy on sea, on land and in the air. In South
Africa, there is a Council of Defence presided over by the
Minister for Defence, with the Chief of the General Staff, the
Quarter Master-General, the Adjutant-General and others
as members. The question, therefore, arises whether we
should take steps to have a Defence Council for the Union.
Incidentally, this might make it possible for countries
like Burma and Ceylon to collaborate with the Union in
defence matters. Until a decision has been arrived at on
this question, it is not possible to draft specific provisions.
Chapter X
Union Economic Council
34. Professor K. T. Shah has suggested that there should
be an Economic Council for the Union consisting of 150
members, who are to be economic and scientific experts.
The functions of the Council are to be to examine any
questions referred to it and to make recommendations on
various economic and fiscal matters, such as internal and
external trade, fiscal policy, currency and coinage, railway
Public
Service
Commission.
Union
Railway
Authority.
Union Defence
Council.
Union Eco¬
nomic Council.
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FRAMING OF INDIA’S CONSTITUTION
Franchise.
rates and fares and so on. There was provision for a simi¬
lar body in the German Reich under the Weimar Consti¬
tution. It has been considered unnecessary to draft specific
provisions until a decision has been reached whether such
a Council should be established in India.
Chapter XI
Franchise for the Union Parliament
35. The Union Parliament may, from time to time, make
provision with respect to all or any of the following
matters, that is to say.
(a) the delimitation of territorial constituencies;
(b) the qualifications for the franchise and the pre¬
paration of electoral rolls;
(c) the qualifications for being elected as a member
of either House;
(d) the filling of casual vacancies in either House;
(e) the conduct of elections under this Constitution and
the methods of voting thereat;
(J) the expenses of candidates at such elections;
(g) corrupt practices and other offences at or in con¬
nection with such elections;
(/>) the decision of doubts and disputes arising out of
or in connection with such elections; and
(i) matters ancillary to any such matter as aforesaid :
Provided that the superintendence, direction and control
of elections, including the appointment of election tribu¬
nals, shall be vested in the President acting in his
discretion.
[Note: The effect of vesting these powers in the President
acting in his discretion will be to make available to him the advice
of the Council of State.]
PART V
International Relations
1. The Union affirms its adherence to the Charter of the
United Nations and to the purposes and principles enun¬
ciated therein.
[Note: The purposes and principles of the Charter are enun¬
ciated in articles 1 and 2. For convenience of reference, the main
purposes and principles are set out below :
The purposes of the United Nations ate :
(1) to maintain international peace and security and to bring
about by peaceful means, and in conformity with the
principles of justice and international law. the adjustment
or settlement of international disputes;
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NOTBS BTC. TO THE UNION CONSTITUTION COMMITTEE
(2) to develop friendly relations among nations based on res¬
pect for the principle of equal rights and self-determination
of peoples and to take other appropriate measures to streng¬
then universal peace;
(3) to achieve international co-operation ; n solving international
problems, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all, without
distinction as to race, sex, language or religion.
The Organisation and its members in pursuit of the above
purposes shall act in accordance with the following principles:
(1) The Organisation is based on the principle of the sovereign
equality of all its members.
(2) All members shall fulfil in good faith the obligations
assumed by them in accordance with the Charter.
(3) All members shall settle their international disputes by
peaceful means in such a manner that international peace
and security and justice are not endangered.
(4) All members shall refrain in their international relations
from the threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United
Nations.
(5) All members shall give the United Nations every assistance
in any action it takes in accordance with the Charter and
shall refrain from giving assistance to any State against
which the United Nations is taking preventive or enforce¬
ment action.]
2. For the purpose of the exercise of any executive
function of the Union in or in connection with its defence
or its external affairs, the Government may, subject to the
provisions of the Charter of the United Nations, avail itself
of or adopt any organ, instrument or method of procedure
used or adopted for the like purpose by any other State
or by the members of any group or organisation of nations
with which the Union is or becomes associated for the pui-
pose of international co-operation in matters of common
concern.
3. (1) Every international agreement to which the
Union becomes a party shall be laid before the House of
Representatives.
(2) The Union shall not be bound by any inter¬
national agreement involving a charge upon the revenues
of the Union unless the terms of the agreement shall have
been approved by the House of Representatives.
Explanation .—This section shall not apply to inter¬
governmental agreements of a technical or administrative
character.
4. No international agreement shall be part of the
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FRAMING OF INDIA’S CONSTITUTION
municipal law of the Union, save as may be determined by
the Parliament of the Union.
[These clauses correspond to article 29 of the Constitution
of Ireland.]
5. The Union shall honour all legitimate obligations
arising out of any treaties or agreements which, immediately
before the commencement of this Constitution, were in force
between India and any other State, provided that such
other State recognises the Union as a soverei gn State and
honours all reciprocal obligations towards the Union.
INote: The legal position as regards treaties and agreements
now subsisting between British India and other States will require
careful consideration, particularly in the event of British India
being, divided into two or more sovereignties.
Different views seem to have been held by different countries,
and even by the same country at different times, on questions of
State succession. For example :
(1) When Colombia was split up into three new States (New
Granada, Venezuela and Ecuador) in 1829-31, the question
arose whether a treaty of 1825 between Colombia and the
United Kingdom continued to be binding on the three new
States. The King’s advocate advised in 1834 that the treaty
of 1825 was still binding upon each of the three new Sr»res
until they respectively gave due notice that they considered
themselves no longer bound by it He qualified the
opinion by stating that it would be more regular and formal
to enter into new and separate treaties with each of the
three new States.
(2) When, in 1905, the real Union of Sweden and Norway was
dissolved. His Majesty’s Government’s view as to the effect
upon previous treaties was: “Although the dissolution of
the Union between Sweden and Norway undoubtedly affords
His Majesty’s Government the right to examine, de novo.
the treaty engagements by which Great Britain was bound
to the dual monarchy, they gladly take note of the desire
of the Swedish Government that these engagements should
remain in force pending a further study of the subject”
(3) When the Republic of Finland was formed at the end of
the Great War and was recognised by Great Britain and
other countries, His Majesty’s Government defined their
attitude towards Finland in the matter of treaties in the
following terms :
“In the case of a new State being formed out of part of an
old State there is no succession bv the new State to the
treaties of the old one, though the obligations of the old
State in relation to such matters as the navigation of
rivers, which are in the nature of servitude, would nor mall y
pass to the new State. Consequently there are no treaties
in existence between Finland and this country.”
(See McNair’s Law of Treaties. 1938, pp. 412-427. The
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
491
French Government’s view as to the effect of the dissolu¬
tion of the Union of Sweden and Norway in 1905 upon
a treaty of 1855 was apparently that the treaty continued
to be binding as between England and France on the one
hand and each of the two separate kingdoms of Sweden
and Norway on the other. Op. c/7., pp. 422).
Thus three different views have been taken as to the effect of
the splitting up of a State into two or more new States upon the
treaties of the old:
(1) that the old treaties continue to be binding on the new States;
(2) that the dissolution or dismemberment gives the other party
to any treaty the right to re-examine the position;
(3) that there is no succession by the new States to the treaties
of the old.]
PART VI
Distribution of Legislative Powers between Union and Units
[The provisions to be inserted under this head will de¬
pend upon the decisions that may be taken upon the report
of the Union Powers Committee. It may be mentioned in
this connection that Sardar Panikkar has advanced power¬
ful arguments in support of the view that the Constitu¬
tion of the Union should be of the unitary type. If it is
decided to abandon the Cabinet Mission's Plan of May
16, 1946, the whole matter may have to be considered
afresh. In that event, we may either have a unitary type
of constitution, as before the Government of India Act of
1935, or we may have a federation with the present distri¬
bution of powers between the Centre and the units. The
former, however desirable, may no longer be practical
politics. Until a decision is arrived at on this point, it is
hardly possible to draft specific provisions. If a federal
type erf constitution is decided upon, a provision on the
following lines should find place therein:
Upon being authorised in this behalf by resolutions of the
legislatures of two or more units, the Union Parliament
may by Act provide for the administration of any region
extending over the units concerned or any parts thereof
in respect of all or any of the subjects that may be spe¬
cified in the resolutions, and may for this purpose estab¬
lish appropriate legislative, executive, judicial, or other
authorities.
Such a provision would enable units to form groups
for regional administration of selected subjects, to set up
joint universities, joint High Courts, or joint authorities
like the Tennessee Valley Authority.]
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FRAMING OF INDIA’S CONSTITUTION
part vn
Administrative relations between Union and units and
between units inter se
[The provisions of this Part will depend upon the dis-
tribution of legislative powers between the Union and the
units in Part VI and specific provisions cannot be drafted
until the provisions of Part VI have been decided upon.
(See Part VI of the Government of India Act, 1935.)]
part vm
Amendment of the Constitution
An amendment to the Constitution may be initiated in
either House of the Union Parliament and when the pro¬
posed amendment is passed in each House by a majority
of not less than two-thirds of the total number of members
of that House and is ratified by the legislatures of not less
than two-thirds of the units of the Union, excluding the
Chief Commissioners’ Provinces, it shall be presented to
the President for his assent: and upon such assent being
given, the amendment shall come into operation.
Explanation /.—For the purposes of this clause, only
the legislatures of the units specified in schedule... shall be
recognised.
Explanation II .—The Union Parliament may, from time
to time, make such additions or alterations in the afore¬
said schedule...as it thinks fit and such additions or altera¬
tions shall have effect as if enacted in this Constitution.
[Note: The explanations are necessary, because some of the
units, particularly where they consist of groups of Indian States,
may not possess proper legislatures. If care is taken not to
admit a unit to the Union, unless it possesses a proper legislature,
the explanations may not be necessary.]
PART IX
Transitional Provisions
1. The Government of the Union shall be the successor
to the Government of India established under the Gov¬
ernment of India Act, 1935, as regards all property, assets,
rights and liabilities.
2. (1) Subject to this Constitution, the laws in force in
the territories included in Schedule I immediately before
the commencement of the Constitution shall continue in
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NOTES ETC. TO TUB UNION CONSTITUTION COMMITTEE
493
force therein until altered, or repealed, or amended by
competent authority, have effect subject to such adapta¬
tions and modifications as appear to him to be necessary
or expedient for bringing the provisions of that law into
accord with the provisions of this Constitution.
3. All courts, including the Judicial Committee of die
Privy Council, existing at the commencement of this Cons¬
titution shall continue to exercise their jurisdiction until
new courts are established by law in accordance with this
Constitution: Provided that all cases pending in the said
courts shall be disposed of by them as if this Constitu¬
tion had not come into operation.
4. Excepting holders of the offices specified in sche¬
dule...every person who immediately before the date of
the commencement of this Constitution, was in the service
of the Crown in India, shall, on that date, at his option, be
transferred to the appropriate service of the Union, or the
unit concerned and shall hold office by a tenure corres¬
ponding to his previous tenure.
[Note: It is obvious that under the new Constitution the Gov¬
ernor-General and the present Governors of the several Provinces
cannot continue in office. The same may be true of the holders
of certain other offices. All such offices may be enumerated in
a schedule. The proposed provision applies to persons holding
offices other than those mentioned in the schedule.]
5. (1) Until both the Houses of the Union Parliament
have been duly constituted and summoned under this
Constitution, the Constituent Assembly shall itself exercise
all the powers and discharge all the duties of both the
Houses.
(2) X, who has been elected in this behalf by the
Constituent Assembly, shall be the President of the Union
until a President has been duly elected as provided in
Part IV of this Constitution.
(3) A, B, C, etc., who have been appointed in this behalf
by X, shall be the President’s Council of Ministers until
Ministers are duly appointed as provided in Part IV of
this Constitution.
[Note: It is essential that on the date of commencement of this
Constitution there should be a Legislature and an Executive ready
to take over power. The existing Indian Legislature is not suffi¬
ciently democratic to be given power even provisionally. Hence
the above proposal that the Constituent Assembly should itself be
the provisional Legislature. The clause regarding the provisional
Executive is consequential.]
6. Whereas difficulties may arise in relation to the
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FRAMING OF INDIA’S CONSTITUTION
Preamble.
Name and terri¬
tory of Union.
transition from the provisions of the Government of India
Act, 193S, to the provisions of this Constitution, and
Whereas the nature of these difficulties and of the pro¬
vision which should be made for meeting them cannot at
the date of the commencement erf this Constitution be fully
foreseen.
Now, therefore, for the purpose of facilitating the said
transition, the Union Parliament may, notwithstanding
anything contained in Part VIII, by Act—
(a) direct that this Constitution, except the provisions
erf the said Part and of this clause, shall, during
such period as may be specified in the Act, have
effect subject to such adaptations and modifications
as may be so specified;
(b) make such other temporary provisions for the
purpose of removing any such difficulties as afore¬
said as may be specified in the Act.
No Act shall be made under this clause after the
expiration of three years from the commencement of this
Constitution.
[Note: The-removal-of-difficulties-daiue is now quite usual:
see, for example, section 310 of the Government of India Act.
1935. The period of three years has been borrowed from article
51 of the Irish Constitution.]
( 6 ) Draft clauses of the Union Constitution
We, the people of India, seeking to promote the com¬
mon good, do hereby, through our chosen representatives,
enact, adopt and give to ourselves this Constitution.
PART l
Union Territory and Jurisdiction
1. The Union hereby established shall be a Sovereign
Independent State known as the Union of India and shall
embrace all the territories included in India under the Gov¬
ernment of India Act, 1935; but save as otherwise pro¬
vided by or under treaty or agreement, only the territories
included for the time being in Schedule I shall be subject
to the jurisdiction of the Union.
[The first part of this clause proceeds on the basis of
the Cabinet Mission’s Plan of May 16, 1946, according to
which there should be a Union of India embracing both
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495
British India and the States. The second part is necessitat¬
ed by the subsequent modification of that plan, according
to which the Constitution is not to be forced upon “unwilling
parts of the country”. Schedule I in its initial form is
intended to specify the “willing parts” at the date of the com¬
ing into operation of the Constitution. If any other terri¬
tories elect to come within Union jurisdiction later, the
schedule is to be modified accordingly (see the next clause).
The clause may be compared with articles 2 and 3 of the
Constitution of Ireland. The parts of India not specified
in the schedule are in the Union, but not of it.]
2. The Parliament of the Union may from time to time
by Act include new territories in Schedule I upon such
terms as it thinks fit
3. The Parliament of the Union may by Act with the
consent of the Legislature of every Province affected thereby,
(a) create a new Province;
(b) increase the area of any Province;
(c) diminish the area of any Province;
(d) alter the boundaries of any Province;
and may with the like consent make such incidental and
consequential provisions as it may deem necessary or proper.
4. The provisions of any such Act as is referred to
in sections 2 and 3 shall have effect as if they were
embodied in this Constitution.
[Clauses 2-4 above correspond to article IV, s. 3, of the
U.S.A. Constitution; s. 146 of the British North America
Act; ss. 121-124 of the Commonwealth of Australia Act;
ss. 149-151 of the Union of South Africa Act; s. 290 of the
Government of India Act, 1935.]
5. (1) All rights, authority and jurisdiction heretofore
exercisable by or on behalf of His Majesty the King in
or in relation to such: of the territories included in
Schedule I as were part of British India shall hereafter be
exercised by the appropriate authorities provided by or
under the Constitution.
(2) The said rights, authority and jurisdiction shall
include any rights, authority or jurisdiction heretofore exer¬
cisable in or in relation to the aforesaid territories by the
Secretary of State, the Crown Representative, the Governor-
General, the Governor-General in Council or any Governor
whether by delegation from His Majesty or otherwise.
6. All rights, authority and jurisdiction heretofore
exercisable by or on behalf of the Ruler of any Indian
Admission of
new territory .
Creation of new
Provinces and
alteration of
Provincial
boundaries .
Jurisdiction
in the
Scheduled
Provinces.
Jurisdiction in
the Scheduled
Indian States.
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496
FRAMING OF INDIA’S CONSTITUTION
State included in Schedule I in or in relation to the State
shall hereafter, to the extent to which they have been
ceded by the Ruler to the Union by the Instrument of
Accession of the State and subject to the terms of the
Instrument, be exercised by the appropriate authorities pro¬
vided by or under this Constitution.
Explanation .—The Instrument of Accession referred to
in this section is an instrument executed by the Ruler and
approved by the Constituent Assembly whereby the Ruler,
on behalf of the State...
(a) has declared that he accedes to the Union with
the intent that the authorities provided by or under
this Constitution for the purposes of the Union shall,
by virtue of the Instrument of Accession, but subject
to the terms thereof, exercise in relation to the State
such functions as may be vested in them by or under
this Constitution;
C b ) has assumed the obligation of ensuring that due
effect is given within the State to the provisions of
this Constitution so for as they are applicable there¬
in by virtue of the Instrument of Accession.
The term “Ruler” includes any persons for the time
being exercising the powers of the Ruler whether by rea¬
son of the Ruler’s minority or for any other reason.
[Note: Clauses 5 and 6 are intended to define the jurisdiction
of the Union at the commencement of the new Constitution. If
new territories are admitted later, the Union's jurisdiction in rela¬
tion to those territories will be defined by the Act admitting them—
see clause 2.
The legal position as regards treaties and agreements now sub¬
sisting between the Crown and various Indian States will require
careful consideration, particularly in the event of British India
being divided into two or more new sovereignties. As regards the
Indian States included in Schedule I, presumably the position will
have to be clarified in the Instruments of Accession. As regards
Indian States outside Schedule I, the position can only be clarified
after negotiations with the State authorities. The position may
well be different for different States, e.g., for States acceding to
Pakistan (if there is one) and for States acceding neither to
Pakistan nor to Hindustan, although both classes of States will be
outside Schedule I. See also note under Part IV of memorandum.]
SCHEDULE I
TERRITORIES SUBJECT TO THE JURISDICTION OF THE UNION
I. Governor^ Provinces
Madras
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497
Bombay
Bengal or West Bengal (?)
The United Provinces
Bihar
The Punjab or East Punjab (?)
The Central Provinces (and Berar ?)
Assam (minus Sylhet?)
N.W.F. Province (?)
Orissa
Sind (?)
II. Chief Commissioners? Provinces
Delhi
British Baluchistan (?)
Ajmer-Merwara
Coorg
The Andaman & Nicobar Islands
Panth Piploda
III. Indian Slates
[Here enumerate the acceding Indian States :—
(1) Single Stales
(2) Groups of States .]
PART n
Citizenship
1. At the date of commencement of this Constitution—
every person domiciled in the territories included with¬
in the Union and subject to its jurisdiction—
(a) who has been ordinarily resident in those terri¬
tories for not less than five years immediately pre¬
ceding that date, or
(b) who, or whose parents, or either of whose parents,
was or were bom in India,
shall be a citizen of the Union:
Provided that any such person being a citizen of any
other State may, in accordance with Union law, elect not
to accept the citizenship hereby conferred.
2. After the commencement of this Constitution—
(a) every person who is bom in the territories included
within the Union and subject to its jurisdiction;
(b) every person who is naturalised in accordance
with Union law; and
(c) every person either of whose parents was at the
time of such person’s birth, a citizen of the Union,
shall be a citizen of the Union.
3. Further provisions governing the acquisition and ter¬
mination of Union citizenship may be made by Union law.
[See note under Part II of memorandum.]
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Citizenship .
498
FRAMING OF INDIA’S CONSTITUTION
Fundamental
Rights.
Election of
President.
President's
term of
office.
PART m
Fundamental Rights including Directive Principles of
State Policy
[Here enumerate fundamental rights and principles of
State policy as passed by the Constituent Assembly.]
PART IV
Chapter l
The Union Executive
1. The President: (1) As soon as may be after the date
of commencement of this Constitution, and thereafter, as
often as a vacancy occurs, the two Houses of the Union Par*
liament shall, at a joint sitting, elect a suitable person to
be the Head of the Union, hereinafter referred to as “the
President”.
(2) The voting shall be by secret ballot according to
the system of proportional representation by the single
transferable vote.
[,See note under Part IV, clause 1 of memorandum.]
2. (1) The President shall hold office for 5 years : Pro¬
vided that—
(a) a President may by resignation under his hand
addressed to the Chairman of the Senate and the
Speaker of the House of Representatives resign his
office;
( b) a President may be removed from office for mis¬
behaviour or infirmity of mind or body by a resolu¬
tion of each of the two Houses of the Union Parlia¬
ment supported by not less than two-thirds of the
total membership of each House.
(2) A person who holds, or who has held office as
President shall be eligible for re-election to that office once,
but only once.
[Note: Since under this Constitution it is proposed that the
maximum term of the House of Representatives is to be 5 years
and the President is to be elected by both Houses, the President’s
♦erm of office has also been fixed at 5 years.
In the U.S.A., the President is removable from office on
impeachment for, and conviction of, treason, bribery or other
high crimes and misdemeanours. The House of Representa¬
tives has the sole power of impeachment and the Senate
has the sole power to try all impeachments. There can be
no conviction without the concurrence of at least two-thirds
of the members of the Senate present In Ireland, the
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499
President may be impeached for stated misbehaviour; the
charge can be preferred by either House of Parliament but
requires the support of not less than two-thirds of the total
membership of the House concerned. The other House
investigates the charge; a conviction requires the support of
not less than two-thirds of the total membership of the
investigating House. The resolution embodying the convic¬
tion operates to remove President from his office. Sub-clause
(1) of the present clause is an adaptation of the U.S.A. and
the Irish precedents (omitting the impeachment procedure).
Sub-clause (2) is borrowed from the Irish Constitution.]
3. (1) An election for the office of President shall be
held not later than, and not earlier than, the 30th day before
the date of the expiration of the term of office of the out¬
going President; but, upon the occurrence of a casual
vacancy (from death, resignation, or removal from office), an
election to fill the vacancy shall be held within 30 days
after its occurrence.
(2) An election to fill a casual vacancy shall be held
in the same manner as that for the permanent vacancy imme¬
diately preceding, and the person elected may serve only
for the remainder of his predecessor’s term of office.
4. Every citizen of the Union who has reached his 35th
year of age is eligible for election to the office of President.
5. Subject to the provisions of this Part, elections for
the office of President shall be regulated by Act of the
Union Parliament
\Note: Assuming that this Constitution comes into operation
on July 1, 1948, it is clear that the House of Representatives and
the Senate can be elected under the Constitution only after that
date. If any elections are attempted to be held in advance of that
date, they can only be on an informal basis not resting on any
law. Moreover, if anything like adult suffrage is contemplated, it
may not be possible to get all the machinery ready before the date
fixed for the transfer of power.
On July 1, 1948, therefore, we shall have to have a “Provisional
Government’’ and “Provisional Legislature" that can function
pending the election or the setting up of a properly constituted
Legislature and a properly constituted Government under the new
Constitution. For this purpose, it may be necessary to insert
appropriate transitional provisions. These will be found in Part
VIII of this Constitution.]
6. (1) The President shall not be a member of either
House of the Union Parliament; and if a member of either
House be elected President, he shall be deemed to have
vacated his seat in that House.
(2) The President shall not hold any other office or
position of emolument.
Bye-elec-
tions.
Age limit.
Presidential elec¬
tions to be
regulated by
Union law sub¬
ject to this
Part .
Conditions
of Presi¬
dents office.
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500
FRAMING OF INDIA’S CONSTITUTION
Commencement
of term of
office.
Oath of office.
Absence from
India.
Provision for
discharge of
President’s
functions
during absence
or vacancy.
(3) The President shall have an official residence and
shall receive such emoluments and allowances as may be
determined by Act of the Union Parliament and until then,
such as are prescribed in Schedule II.
(4) The emoluments and allowances of the President
shall not be diminished during his term of office.
7. The first President shall enter upon his office as
soon as may be after his election and every subsequent
President shall enter upon his office on the day following
the expiration of the term of office of his predecessor or as
soon as may be thereafter or, in the case of a President
elected to fill a casual vacancy, as soon as may be after
the election.
8. Every President shall enter upon his office by taking
and subscribing in the presence of the members of both
Houses of the Union Parliament a declaration according
to the form set out in that behalf in schedule—to this
Constitution.
9. The President shall not leave India during his term
of office save with the consent of his Council of Ministers.
10. (1) In the event of the absence of the President or
of his death, resignation, removal from office, or incapacity
or failure to exercise and perform the powers and functions
of his office or at any time at which the office of the Presi¬
dent may be vacant, the powers and functions conferred
upon the President by this constitution shall be exercised
and performed by a Commission as hereinafter provided
in this section.
(2) (a) The Commission shall consist of the following
persons, namely,
(0 the Chief Justice of the Supreme Court;
(ii) the Chairman of the Senate; and
(fii) the Speaker of the House of Representatives.
(b) On any occasion on which the office of the Chief
Justice of the Supreme Court is vacant or on which the
Chief Justice is unable to act, the senior judge of the
Supreme Court shall act in his place as a member of the
Commission.
(c) The Deputy Chairman of the Senate shall act as
a member of the Commission in the place erf the Chairman
on any occasion on which the office of Chairman is vacant
or on which the Chairman is unable to act.
(d) The Deputy Speaker of the House of Representa¬
tives shall act as a member of the Commission in the place
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
SOI
of the Speaker on any occasion on which the office of
Speaker is vacant or on which the Speaker is unable to act.
(3) The Commission may act by any two of their
number and may act notwithstanding a vacancy in their
membership.
(4) In the event of the failure of the President to exer¬
cise or perform any power or function which he is by this
Constitution required to exercise or perform within a spe¬
cified time, the said power or function shall be exercised
or performed under this section, as soon as may be after
the expiration of the time so specified.
(5) The Council of State may by a majority of its
members make such provision as to them may seem fit
for the exercise and performance of the powers and func¬
tions conferred on the President by this Constitution in any
contingency which is not provided for by this section.
(6) The provisions of this Constitution which relate to
the exercise and performance by the President of the powers
and functions conferred upon him by this Constitution shall
apply to the exercise and performance of the said powers
and functions by the Commission under this section.
[See note under Part IV, clause 6 of memorandum.]
11. Subject to the provisions of this Constitution, the
executive authority of the Union shall be exercised by the
President, either directly or through officers subordinate to
him, but nothing in this section shall prevent the Union
Parliament from conferring functions upon subordinate
authorities, or be deemed to transfer to the President any
functions conferred by any existing Indian law on any court,
judge or officer, or on any local or other authority.
12. (1) Subject to the provisions of this Constituion,
the executive authority of die Union extends—
(a) to the matters with respect to which the Union
Parliament has power to make laws;
(b) to the governance, in accordance with the provi¬
sions of any treaty or agreement in this behalf, of
any armed forces not raised in the Union that may.
with the consent of the Government of the Union, be
stationed in the Union or placed at the disposal
of the Union;
(c) to the exercise, in accordance with the provisions of
any treaty or agreement in this behalf, of such rights,
authority and jurisdiction in or in relation to any
territories not included in Schedule I as may be
Functions of
President.
Extent of exe¬
cutive authority
of the Union.
33
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FRAMING OF INDIA’S CONSTITUTION
vested in the Government of the Union by such treaty
or agreement:
Provided that:
(0 the said authority does not, save as expressly pro¬
vided in this Constitution, extend in any Province to
matters with respect to which the Provincial Legisla¬
ture has power to make laws; and
(/i) the said authority does not, save as expressly pro¬
vided in thia Constitution, extend in any Indian State
included in Schedule I, save in matters with respect
to which the Union Parliament has power to make
laws for that State and the exercise thereof in each
State shall be subject to such limitations, if any, as
may be specified in the Instrument of Accession of
the State.
(2) The executive authority of the Ruler of a State in¬
cluded in Schedule I shall, notwithstanding anything in this
section, continue to be exercisable in that State with respect
to matters with respect to which the Union Parliament has
power to make laws for that State except in so far as the
executive authority of the Union becomes exercisable in the
State to the exclusion of the executive authority of the
Ruler by virtue of a Union law.
[Note: Clauie 12(1) (a) above is consequential upon the legis¬
lative power of the Union. The matters specified in (b) and (c)
are normally outside the legislative power of the Union, and the
executive power of the Union with respect to such matters has
therefore to be derived from some special treaty or agreement;
(c) would apply to tribal areas as well as to Indian States not
included in Schedule 1.
Clause 12(2), like the corresponding provision in section 8(2)
of the Act of 1935, gives the Rulers of Indian State units of the
Union concurrent executive power even in Union subjects, save as
taken away by Union law. In this respect, the position of the
Provincial units is rather different: they have no executive power
in respect of Union subjects save as given by Union law.]
Administration of Union Affairs
13. (1) There shall be a Council of Ministers not ex¬
ceeding—in number, with the Prime Minister at the head,
to aid and advise the President in the exercise of his func¬
tions, except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his
discretion.
(2) If any question arises whether any matter is or is
not a matter as respects which the President is by or under
this Constitution required to act in his discretion, the decision
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NOTES ETC. TO THB UNION CONSTITUTION COMMITTEE
503
of the President in his discretion shall be final, and
the validity of anything done by the President shall not be
called in question on the ground that he ought or ought
not to have acted in his discretion.
[Note: Although under responsible Government, the President
will almost always act on the advice of Ministers, there will be
a few matters in respect of which he will have to act in his own
discretion. Even in the English Constitution, there are certain
matters in respect of which it is a moot question whether the King
is bound to act on the advice of the Prime Minister, e.g., in the
matter of dissolving the House of Commons when the Prime
Minister has lost its confidence. (See also note under Part IV,
clause 10, of memorandum.)]
14. (1) The President’s Ministers shall be chosen and
summoned by him, shall be sworn as members of the Coun¬
cil, and shall hold office during his pleasure.
(2) A Minister who for any period of six consecutive
months is not a member of either House of the Union
Parliament shall at the expiration of that period cease to
be a Minister.
(3) The salaries of Ministers shall be such as the
Union Parliament may from time to time by Act deter¬
mine and, until the Union Parliament so determines, shall
be determined by the President:
Provided that the salary of a Minister shall not be
varied during his term of office.
(4) The question whether any and, if so, what advice
was tendered by Ministers to the President shall not be
inquired into in any court.
(5) The functions of the President, with respect to the
choosing and summoning and the dismissal of Ministers,
and with respect to the determination of their salaries, shall
be exercised by him in his discretion.
15. (1) In the exercise of his functions the President
shall have the following special responsibilities, that is to
say,—
(a) the prevention of any grave menace to the peace
or tranquillity of the Union or any part thereof;
(Z>) the safeguarding of the financial stability and
credit of the Union Government;
(c) the safeguarding of the legitimate interests of
minorities.
(2) If and in so for as any special responsibility of the
President is involved, he shall in the exercise of his functions
exercise his discretion as to the action to be taken.
[See note under Part IV, clause 13, of memorandum.]
Other provi¬
sions as
to Minis¬
ters.
Special
responsibilities
of President.
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504
Advocate-
General for
the Union.
Conduct of
business of
Union Gov¬
ernment.
Council of State.
Composition.
FRAMING OF INDIA’S CONSTITUTION
16. (1) The President shall appoint a person, being a
person qualified to be appointed a judge of the Supreme
Court, to be Advocate-General for the Union.
(2) It shall be the duty of the Advocate-General to
give advice to the Union Government upon such legal
matters, and to perform such other duties of a legal charac¬
ter, as may be referred or assigned to him by the President,
and in the performance of his duties he shall have right
of audience in all courts in the Provinces and, in a case
in which Union interests are concerned, in all courts in
any Indian State included in Schedule 1.
(3) The Advocate-General shall hold office during the
pleasure of the President, and shall receive such remunera¬
tion as the President may determine.
17. (1) All executive action of the Union Govern¬
ment shall be expressed to be taken in the name of the
President.
(2) Orders and other instruments made and executed
in the name of the President shall be authenticated in such
manner as may be specified in rules to be made by the
President, and the validity of an order or instrument
which is so authenticated shall not be called in question
on the ground that it is not an order or instrument made
or executed by the President.
(3) The President shall make rules for the more con¬
venient transaction of the business of the Union Govern¬
ment, and for the allocation among Ministers of the said
business in so far as it is not business with respect to
which the President is by or under this Constitution required
to act in his discretion.
Chapter II
The Council of State
18. There shall be a Council of State whom the Presi¬
dent may consult on all matters in which he is required
by this Constitution to act in his discretion.
19. The Council of State shall consist of the following
members :
(1) Ex-officio members: the Prime Minister, the
Deputy Prime Minister, if any, the Chief Justice of
the Supreme Court, the Speaker of the House of
Representatives, the Chairman of the Senate and
the Advocate-General.
(2) Every person able and willing to act as a member
who shall have held the office of President, or the
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
505
office of Prime Minister, or the office of Chief
Justice of the Supreme Court.
(3) Such other persons, if any, as may be appointed
by the President to bs members.
20. The President may at any time by warrant under
his hand and seal appoint such other persons as in his
discretion he may think fit to be members of the Council
of State, but not more than 7 persons so appointed shall
be members of the Council of State at the same time.
21. Every member of the Council of State appointed
by the President, unless he previously dies, resigns, be¬
comes permanently incapacitated or is removed from office
shall hold office until the successor of the President by
whom he was appointed shall have entered upon his office.
22. Any member erf the Council of State appointed by
the President may resign from office by writing under his
hand addressed to the President.
23. The President may for reasons which to him seem
sufficient by an order under his hand and seal terminate
the appointment of any member of the Council of State
appointed by him.
24. Meetings of the Council of State may be convened
by the President at such times and places as he
shall determine.
[See note under Part IV, clause 22 of memorandum.]
Chapter III
The Union Parliament
25. (1) The legislative power of the Union shall be
vested in the Parliament of the Union (hereinafter referred
to as the Union Parliament) which shall consist of the
President and two Houses, the Senate and the House of
Representatives.
(2) (a) The ’Senate shall consist of not more than 168
representatives of the Provinces and not more than 112
representatives of the Indian States;
(b) The House of Representatives shall consist of re¬
presentatives of the Provinces and of the Indian States or
groups of States (as the case may be) included in Schedule I
in the proportion of not less than one representative for
every million of the population and not more than one re¬
presentative for every 750 thousands of the population.
*For detailed allocation of seats in the Senate see Table of
Seats at the end of Chapter III of Part IV of memorandum.
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Appointments
by President.
Term of Office.
Resignation.
Termination by
President of
appointments
made by
him.
Meetings
Constitution of
the Union
Parliament.
506
FRAMING OF INDIA’S CONSTITUTION
Sessions of
the Union
Parliament,
prorogation
and dis¬
solution.
The ratio between the number of members to be elec*
ted at any time for each constituency and the population
of that constituency, as ascertained at the last preceding
census shall, so far as it is practicable, be the same through¬
out the territories subject to the jurisdiction of the Union.
(c) The said representatives shall be chosen in accor¬
dance with the provisions in that behalf contained in
Schedule...
(3) Upon the completion of each decennial census,
the representation of the several Provinces and Indian
States or groups of Indian States in the House of Repre¬
sentatives shall be readjusted by such authority, in such
manner, and from such time as the Union Parliament may
by Act determine:
Provided that such readjustment shall not take effect
until the dissolution of the then existing House of
Representatives.
(4) The Senate shall be a permanent body not subject
to dissolution, but as near as may be one-third of the
members thereof shall retire in every third year in accor¬
dance with the provisions in that behalf contained in
Schedule...
(5) Every House of Representatives, unless sooner dis¬
solved, shall continue for five years from the date appoint¬
ed for their first meeting and no longer, and the expiration
of the said period of five years shall operate as a dissolu¬
tion of the House of Representatives.
[See note under Part IV, clause 24 of memorandum.]
26. (1) The Houses of the Union Parliament shall be
summoned to meet once at least in every year, and twelve
months shall not intervene between their last sitting in one
session and the date appointed for their first sitting in the
next session.
(2) Subject to the provisions of this section, the President
may from time to time—
(а) summon the Houses or either House to meet at
such time and place as he thinks fit;
(б) prorogue the Houses ;
(c) dissolve the House of Representatives:
Provided that the President may in his discretion
refuse to dissolve the House of Representatives on the
advice of a Prime Minister who has ceased to retain the
support of the majority in that House.
(3) The Houses shall be summoned to meet for their
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
507
first session as early as possible after the commencement
of this Constitution.
27. (1) The President may in his discretion address either
House of the Union Parliament or both Houses assembled
together, and for that purpose require the attendance
of members.
(2) The President may in his discretion send messages
to either House of the Union Parliament, whether with
respect to a Bill then pending in the Union Parliament or
otherwise, and a House to whom any message is so sent
shall with all convenient dispatch consider any matter
which they are required by the message to take into
consideration.
28. Every Minister and the Advocate-General shall
have the right to speak in, and otherwise to take part in
the proceedings of, either House, any ioint sitting of the
Houses, and any committee of the Union Parliament of
which he may be named a member, but shall not by
virtue of this section be entitled to vote.
29. (1) The Senate shall, as soon as may be, choose
two members of the House to be respectively Chairman
and Deputy Chairman thereof and, so often as the office
of Chairman or Deputy Chairman becomes vacant, the
Senate shall choose another member to be Chairman or
Deputy Chairman, as the case may be.
(2) A member holding office as Chairman or Deputy
Chairman of the Senate shall vacate his office if he ceases
to be a member of the Senate, may at any time resign his
office by writing under his hand addressed to the President,
and may be removed from his office by a resolution of
the Senate passed by a majority of all the then members
of the Senate; but no resolution for the purpose of this
sub-section shall be moved unless at least 14 days* notice
has been given of the intention to move the resolution.
(3) While the office of Chairman is vacant, the duties
of the office shall be performed by the Deputy Chairman,
or, if the office of Deputy Chairman is also vacant, by
such member of the Senate as the President may in hit
discretion appoint for the purpose, and during any absence
of the Chairman from any sitting of the Senate the Deputy
Chairman or, if he is also absent, such person as may be
determined by the rules of procedure of the Senate, or, if
no such person is present, such other person as may be
determined by the Senate, shall act as Chairman.
Right of Pre¬
sident to address
and send mess¬
ages to Houses.
Rights of Minis¬
ters and
Advocate
General
as respects
Houses.
Officers of
Houses.
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508
FRAMING OF INDIA’S CONSTITUTION
Voting in
Houses, power
of Houses to
act notwith¬
standing
vacancies,
and quorum.
Oath of
members-
(4) There shall be paid to the Chairman and the
Deputy Chairman of the Senate such salaries as may be
respectively fixed by Act of the Union Parliament, and,
until provision in that behalf is so made, such salaries as
the President may determine.
(5) The foregoing provisions of this section shall
apply in relation to the House of Representatives as they
apply in relation to the Senate with the substitution of the
titles ‘Speaker* and ‘Deputy Speaker’ for the titles ‘Chair¬
man’ and ‘Deputy Chairman’ respectively, and with the
substitution of references to the House of Representatives
for references to the Senate :
Provided that, without prejudice to the provisions of
sub-section (2) of this section as applied by this sub-sec¬
tion, whosever the House of Representatives is dissolved,
the Speaker shall not vacate his office until immediately
before the first meeting of the House of Representatives
after the dissolution.
30. (1) Save as provided in the last preceding section,
all questions at any sitting or joint sitting of the Houses
shall be determined by a majority of votes of the members
present and voting, other than the Chairman or Speaker
or person acting as such.
The Chairman or Speaker or person acting as such
shall not vote in the first instance, but shall have and
exercise a casting vote in the case of an equality of votes.
(2) A House of the Union Parliament shall have
power to act notwithstanding any vacancy in the member¬
ship thereof, and any proceedings in the Union Parliament
shall be valid notwithstanding that it is discovered sub¬
sequently that some person who was not entitled so to do
sat or voted or otherwise took part in the proceedings.
(3) If at any time during a meeting of a House less
than one-sixth of the total number of members of the
House are present, it shall be the duty of the Chairman
or Speaker or person acting as such either to adjourn the
House, or to suspend the meeting until at least one-sixth
of the members are present
31. Every member of either House shall, before tak¬
ing his seat, make and subscribe before the President, or
some person appointed by him. an oath according to that
one of the forms set out in Schedule... to this Constitu¬
tion which the member accepts as appropriate in
his case.
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
509
32. (1) No person shall be a member of both Houses,
and rules made by the President shall provide for the
vacation by a person who is chosen a member of both
Houses of his seat in one House or the other.
(2) If a member of either House—
(a) becomes subject to any of the disqualifications
mentioned in sub-section (1) of the next succeeding
section; or
(b) by writing under his hand addressed to the President
resigns his seat,
his seat shall thereupon become vacant.
(3) If for sixty days a member of either House is
without permission of the House absent from all meetings
thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty
days no account shall be taken of any period during which
the House is prorogued, or is adjourned for more than
four consecutive days.
33. (1) A person shall be disqualified for being chosen
as, and for being, a member of either House—
(a) if he holds any office of profit under the Union
or any unit other than an office declared by Act
of the Union Parliament not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by
a competent court;
(c) if he is an undischarged insolvent;
(d) if, whether before or after the commencement of
this Constitution, he has been convicted, or has, in
proceedings for questioning the validity or regularity
of an election, been found to have been guilty, of
any offence or corrupt or illegal practice relating to
elections which has been declared by an Act of the
Union Parliament to be an offence or practice en¬
tailing disqualification for membership of the Union
Parliament, unless such period has elapsed as may
be specified in that behalf by the provisions of that
Act;
(e) if, whether before or after the commencement of
this Constitution, he has been convicted of any other
offence by a court within British India or within the
territories subject to the jurisdiction of the Union (as
the case may be) and sentenced to transportation
or to imprisonment for not less than two years, un¬
less a period of five years, or such less period as
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Vacation of
seats •
Disqualifications
for membership.
510
FRAMING OF INDIA’S CONSTITUTION
the President, acting in his discretion, may allow
in any particular case, has elapsed sinoe his release;
if) if, having been nominated as a candidate for the
Union Parliament or any Provincial Legislature or
having acted as an election agent of any person
so nominated, he has failed to lodge a return of
election expenses within the time and in the manner
required by any Act of the Union Parliament or
the Provincial Legislature, unless five years have
elapsed from the date by which the return ought to
have been lodged or the President, acting in his dis¬
cretion, has removed the disqualifications
Provided that a disqualification under paragraph (f)
of this sub-section shall not take effect until die ex¬
piration of one month from the date by which the
return ought to have been lodged or of such longer
period as the President, acting in his discretion, may
in any particular case allow.
(2) A person shall not be capable of being chosen a
member of either House while he is serving a sentence
of transportation or of imprisonment for a criminal
offence.
(3) Where a person who. by virtue of a conviction or
a conviction and a sentence, becomes disqualified by virtue
of paragraph (d) or paragraph (e) of sub-section (1) of this
section, is at the date of the disqualification a member of
the Union Parliament, his seat shall, notwithstanding any*
thing in this or the last preceding section, not become
vacant by reason of the disqualification until three months
have elapsed from the date thereof, or, if within those
three months an appeal or petition for revision is brought
in respect of the conviction or the sentence, until) that
appeal or petition is disposed of, but during any period
during which his membership is preserved by this sub¬
section he shall not sit or vote.
(4) For the purposes of this section a person shall not
be deemed to hold an office of profit under the Union or
any unit by reason only that—
(a) he is a Minister either for the Union or for a
Province; or
(b) while serving an Indian State, he remains a
member of one of the services of the Union or
of any unit and retains all or any of his rights
as such.
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEB
511
34. If a person sits or votes as a member of either
House when he is not qualified or is disqualified for mem¬
bership thereof, or when he is prohibited from so doing
by the provisions erf sub-section (3) of the last preceding
section, he shall be liable in respect of each day on which
he so sits or votes to a penalty of five hundred rupees to
be recovered as a debt due to the Union.
35. (1) Subject to the provisions of this Constitution
and to the rules and standing orders regulating the proce¬
dure of the Union Parliament, there shall be freedom of
speech in the Union Parliament, and no member of the
Union Parliament shall be liable to any proceedings in
any court in respect of anything said or any vote given by
him in the Union Parliament or any committee thereof, and
no person shall be so liable in respect of the publication
by or under the authority of either House of file Union
Parliament of any report, papa:, votes or proceedings.
(2) In other respects, the privileges of members of the
Houses shall be such as may from time to time be defined
by Act of the Union Parliament and, until so defined, shall
be such as were immediately before the commencement
of this Constitution enjoyed by members of the Indian
Legislature.
(3) The provisions of sub-sections (1) and (2) of this
section shall apply in relation to persons who by virtue
of this Constitution have the right to speak in. and other¬
wise take part in the proceedings of, a House as they apply
in relation to members of the Union Parliament
36. Members of either House shall be entitled to
receive such salaries and allowances as may from time to
time be determined by Act of the Union Parliament and.
until provision in that respect is so made, allowances at
such rates and upon such conditions as were immediately
before the date of the commencement of this Constitution
applicable in the case of members erf the Legislative
Assembly erf the Indian Legislature.
Legislative Procedure
37. (1) Subject to the special provisions of this Part
of this Constitution with respect to financial Bills, a Bill
may originate in either House.
(2) Subject to the provisions of the next succeeding
section, a Bill shall not be deemed to have been passed by
the Houses of the Union Parliament unless it has been
agreed to by both Houses, either without amendment or
Penally for
sitting and
voting when
not qualified, or
when dis¬
qualified .
Privileges etc.
of members.
Salaries and
allowances of
members.
Provisions as to
introduction and
passing of Bills.
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512
FRAMING OF INDIA’S CONSTITUTION
Joint sittings of
both Houses in
certain cases.
with such amendments only as are agreed to by both
Houses.
(3) A Bill pending in the Union Parliament shall not
lapse by reason of the prorogation of the Houses.
(4) A Bill pending in the Senate which has not been
passed by the House of Representatives shall not lapse on
a dissolution of the House of Representatives.
(5) A Bill which is pending in the House of Represen¬
tatives or which having been passed by the House of Re¬
presentatives is pending in the Senate shall, subject to the
provisions of the next succeeding section, lapse on a disso¬
lution of the House.
38. (1) If after a Bill has been passed by one House
and transmitted to the other House—
(a) the Bill is rejected by the other House; or
(b) the Houses have finally disagreed as to the amend¬
ments to be made in the Bill; or
(c) more than six months elapse from the date of the
reception of the Bill by the other House without the
Bill being presented to the President for his assent;
the President may, unless the Bill has lapsed by rea¬
son of a dissolution of the House of Representatives,
notify to the Houses, by message if they are sitting
or by public notification if they are not sitting, his
intention to summon them to meet in a joint sitting
for the purpose of deliberating and voting on the
Bill:
Provided that, if it appears to the President that the
BUI relates to finance or to any matter which affects
the discharge of his functions in so far as he is by
or under this Constitution required to act in his
discretion, he may so notify the Houses notwithstand¬
ing that there has been no rejection of or final
disagreement as to the BUI and notwithstanding that
the said period of six months has not elapsed, if he
is satisfied that there is no reasonable prospect of
the BiU being presented to him for his assent with¬
out undue delay.
In reckoning any such period of six months as is
referred to in this sub-section, no account shall be taken of
any time during which the Union Parliament is prorogued
or during which both Houses are adjourned for more than
four days.
(2) Where the President has notified his intention of
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
513
summoning the Houses to meet in a joint sitting, neither
House shall proceed further with the Bill, but the Presi¬
dent may at any time in the next session after the expira¬
tion of six months from the date of his notification sum¬
mon the Houses to meet in a joint sitting for the purpose
specified in his notification and, if he does so, the Houses
shall meet accordingly:
Provided that, if it appears to the President that the
Bill is such a Bill as is mentioned in the proviso to sub¬
section (1) of this section, he may summon the Houses to
meet in a joint sitting for the purpose aforesaid at any
date, whether in the same session or in the next session.
(3) The functions of the President under the provisos
to the two last preceding sub-sections shall be exercised by
him in his discretion.
(4) If at the joint sitting of the two Houses the Bill,
with such amendments, if any, as are agreed to in a joint
sitting, is passed by a majority of the total number of mem¬
bers of both Houses present and voting, it shall be deemed
for the purposes of this Constitution to have been passed
by both Houses:
Provided that at a joint sitting—
(a) if the Bill, having been passed by one House, has
not been passed by the other House with amend¬
ments and returned to the House in which it origi¬
nated, no amendment shall be proposed to the
Bill other than such amendments (if any) as are
made necessary by the delay in the passage of
the Bill;
(b) if the Bill has been so passed and returned only
such amendments as aforesaid shall be proposed to
the Bill and such other amendments as are relevant
to the matters with respect to which the Houses
have not agreed;
and the decision of the person presiding as to the
amendments which are admissible under this sub¬
section shall be final.
(5) A joint sitting may be held under this section and
a Bill passed thereat notwithstanding that a dissolution of
the House of Representatives has intervened since the Pre¬
sident notified his intention to summon the Houses to
meet therein.
39. When a Bill has been passed by the Houses, it Assent to Bills .
shall be presented to the President, and the President shall
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514
FRAMING OF INDIA’S CONSTITUTION
Annual financial
statement .
in his discretion declare either that he assents to the Bill,
or that he withholds assent therefrom:
Provided that the President may in his discretion re¬
turn the Bill to the Houses with a request that they will
reconsider the Bill or any specified provisions thereof and.
in particular, will consider the desirability of introducing
any such amendments as he may recommend in his request,
and the Houses shall reconsider the Bill accordingly.
Procedure in Financial Matters
40. (1) The President shall in respect of every finan¬
cial year cause to be laid before both Houses of the Union
Parliament a statement of the estimated receipts and ex¬
penditure erf the Union fen: that year, in this Part of this
Constitution referred to as the “annual financ ial statement”.
(2) The estimates of expenditure embodied in the
annual financial statement shall show separately—
(a) the sums required to meet expenditure described
by this Constitution as expenditure charged upon
the revenues of the Union; and
{b) the sums required to meet other expenditure pro¬
posed to be made from the revenues of the Union, and
shall distinguish expenditure on revenue account from
other expenditure, and indicate the sums, if any,
which are included solely because the President has
directed their inclusion as being necessary for the due
discharge of any of his special responsibilities.
(3) The following expenditure shall be expenditure
charged on the revenues of the Union :
(a) the salary and allowances of the President and
other expenditure relating to his office;
(b) debt charges for which the Union is liable, in¬
cluding interest, sinking fund charges and redemption
charges, and other expenditure relating to the raising
of loans and the service and redemption of debt;
(c) the salaries, allowances, and pensions payable to
or in respect of judges of the Supreme Court;
(d) expenditure for the purpose of the discharge by
the President of his functions in so far as he is by
or under this Constitution required in the exercise
thereof to act in his discretion;
(e) any sums required to satisfy any judgment, decree
or award of any court or arbitral tribunal;
(0 any other expenditure declared by this Constitu¬
tion or any Act of the Parliament to be so charged.
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEB
515
(4) Any question whether any proposed expenditure
falls within a class of expenditure charged on the revenues
of the Union shall be decided by the President in his discretion.
41. (1) So much of the estimates of expenditure as re¬
lates to expenditure charged upon the revenues of the
Union shall not be submitted to the vote of the Union Par¬
liament, but nothing in this sub-section shall be construed
as preventing the discussion in either House of the Union
Parliament of any of those estimates.
(2) So much of the said estimates as relates to other
expenditure shall be submitted in the form of demands for
grants to the House of Representatives and thereafter to
the Senate, and either House shall have power to assent
or to refuse to assent to any demand, or to assent to any
demand subject to a reduction of the amount specified
therein:
Provided that, where the House of Representatives
have refused to assent to any demand, that demand shall
not be submitted to the Senate, unless the President so
directs and, where the House of Representatives have
assented to a demand subject to a reduction of the amount
specified therein, a demand for the reduced amount only
shall be submitted to the Senate, unless the President other¬
wise directs; and where, in either of the said cases, such
a direction is given, the demand submitted to the Senate
shall be for such amount, not being a greater amount than
that originally demanded, as may be specified in the direction.
(3) If the Houses differ with respect to any demand,
the President shall summon the two Houses to meet in a
joint sitting for the purpose of deliberating and voting on
the demand as to which they disagree, and the decision of
the majority of the members of both Houses present and
voting shall be deemed to be the decision of the two Houses.
(4) No demand for a grant shall be made except on
the recommendation of the President.
42. (1) The President shall authenticate by his signa¬
ture a schedule specifying—
(a) the grants made by the Houses under the last pre¬
ceding section;
(h) the several sums required to meet the expenditure
charged on the revenues of the Union, but not ex¬
ceeding, in the case of any sum, the sum shown in
the statement previously laid before the Union Par¬
liament :
Procedure in
Parliament with
respect to
estimates.
Authentication
of schedule of
authorised ex¬
penditure.
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516
FRAMING OF INDIA’S CONSTITUTION
Supplementary
statements of
expenditure .
Special provi¬
sions as to
financial Bills .
Provided that, if the Houses have not assented to any
demand for a grant or have assented subject to a
reduction of the amount specified therein, the Pre¬
sident may, if in his opinion the refusal or reduction
would affect the due discharge erf any of his
special responsibilities, include in the schedule such
additional amount, if any, not exceeding the amount
of the rejected demand or the reduction, as the case
may be, as appears to him necessary in order to
enable him to discharge that responsibility.
(2) The schedule so authenticated shall be laid before both
Houses, but shall not be open to discussion or vote therein.
(3) Subject to the provisions of the next succeeding
section, no expenditure from the revenues of the Union shall
be deemed to be duly authorised unless it is specified in the
schedule so authenticated.
43. If in respect of any financial year further expendi¬
ture from the revenues of the Union becomes necessary
over and above the expenditure theretofore authorised for
that year, the President shall cause to be laid before both
Houses of the Union Parliament a supplementary state¬
ment showing the estimated amount of that expenditure,
and the provisions erf the preceding sections shall have
effect in relation to that statement and that expenditure as
they have effect in relation to the annual financial state¬
ment and the expenditure mentioned therein.
44. (1) A Bill or amendment making provision—
(a) for imposing or increasing any tax; or
(b) for regulating the borrowing erf money or the giv¬
ing erf any guarantee by the Union Government, or
for amending the law with respect to any financial
obligations undertaken or to be undertaken by the
Union Government; or
(c) for declaring any expenditure to be expenditure
charged on the revenues of the Union, or for in¬
creasing the amount of any such expenditure;
shall not be introduced or moved except on the recommen¬
dation of the President, and a Bill making such provision
shall not be introduced in the Senate.
(2) A Bill or amendment shall not be deemed to make
provision for any of the purposes aforesaid by reason only
that it provides for the imposition of fines or other pecu¬
niary penalties, or for the demand or payment of fees for
licences or fees for services rendered.
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
517
(3) A Bill which, if enacted and brought into opera¬
tion, would involve expenditure from the revalues of the
Union shall not be passed by either House unless the Presi¬
dent has recommended to that House the consideration
of the Bill.
Procedure Generally
45. (1) Each House of the Union Parliament may
make rules for regulating, subject to the provisions erf
this Constitution, their procedure and the conduct erf their
business.
(2) The President, after consultation with the Chair¬
man of the Senate and the Speaker of the House of Repre¬
sentatives, may make rules as to the procedure with respect
to joint sittings of, and communications between, the two
Houses.
(3) Until rules are made under this section, the rules
of procedure and standing orders in force immediately
before the commencement of this Constitution with respect
to the Indian Legislature shall have effect in relation to the
Union Parliament subject to such modifications and adapta¬
tions as may be made therein by the President
(4) At a joint sitting of the two Houses the Chairman
of the Senate, or in his absence such person as may be
determined by rules of procedure made under this section,
shall preside.
46. In the Union Parliament, business shall be trans¬
acted in Hindustani (Hindi or Urdu) or English, provided
that the Chairman or the Speaker, as the case may be,
may permit any member who cannot adequately express
himself in either language to address the House in his
mother tongue. The Chairman or the Speaker, as the case
may be, shall make arrangements for giving the House,
whenever he thinks fit, a summary of the speech in a
language other than that used by the member and such
summary shall be included in the record of the proceedings
of the House.
47. No discussion shall take place in the Union Par¬
liament with respect to the conduct of any judge of the
Supreme Court or a High Court in the discharge of his
duties, except upon a motion for presenting an address to
the President praying for the removal of the judge as here-
inafter provided.
In this section the reference to a High Court shall be
construed as including a reference to any court in an Indian
34
Rules of Pro -
cedure .
Language In the
Union Parlia¬
ment.
Restrictions on
discussion in
Parliament.
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framing of India’s constitution
Courts not to
inquire into
proceedings of
Parliament .
Power of Presi¬
dent to promul¬
gate ordinances
during recess of
Parliament .
State which is included in Schedule I and which is a High
Court for the purposes of Part...of this Constitution.
48. (1) The validity of any proceedings in the Union
Parliament shall not be called in question on the ground
of any alleged irregularity of procedure.
(2) No officer or other member erf the Union Parlia¬
ment in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of
business, or for maintaining order, in the Union Parliament
shall be subject to the jurisdiction of any court in respect
of the exercise by him of those powers.
Chapter IV
Legislative Powers of the President
49. (1) If at any time when the Union Parliament is
not in session the President is satisfied that circumstances
exist which render it necessary for him to take immediate
action, he may promulgate such ordinances as the circum¬
stances appear to him to require.
(2) An Ordinance promulgated under this section shall
have the same force and effect as an Act of the Union
Parliament assented to by the President, but every such
Ordinance—
(a) shall be laid before the Union Parliament and
shall cease to operate at the expiration of six weeks
from the reassembly of the Union Parliament, or,
if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon
the passing of the second of those resolutions;
and
(b) may be withdrawn at any time by the President.
(3) If and so far as an Ordinance under this section
makes any provision which the Union Parliament would
not under this Constitution be competent to enact, it shall
be void.
[Note: The Ordinance-making power has been the subject ot
great criticism under the present Constitution. It must however
be pointed out that circumstances may exist where the immediate
promulgation of a law is absolutely necessary and there is no time
in which to summon the Union Parliament Speaking from me¬
mory, Lord Reading found it necessary to make an Ordinance
abolishing the cotton excise duty when such action was immediate¬
ly and imperatively required in the interests of the country. The
President who is elected by the two Houses of Parliament and who
has normally to act on the advice of Ministers responsible to
Parliament is not at all likely to abuse any Ordinance-making power
with which he may be invested. Hence the proposed provision.]
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
519
Chapter V
The Union Judicature
50. (1) There shall be a Supreme Court in the Union
consisting of a Chief Justice and such number of other
judges not being less than ten as the Union Parliament
may deem necessary.
(2) Every judge of the Supreme Court shall be
appointed by the President by warrant under his hand and
seal with the approval of not less than two-thirds of the
members of the Council of State and shall hold office until
he attains the age of sixty-five years:
Provided that—
(a) a judge may by resignation under his hand addres¬
sed to the President resign his office;
(b) a judge may be removed from his office by the
President by order under his hand and seal on an
address from both Houses of the Union Parliament
praying for his removal on the ground of mis¬
behaviour or incapacity.
[Note: The ad hoc Committee on the Supreme Court has
observed that it will not be expedient to leave the power of
appointing judges of the Supreme Court to the unfettered discretion
of the President of the Union. They have suggested two alterna¬
tives, both of which involve the setting up of a special panel of
eleven members. According to one alternative, the President, in
consultation with the Chief Justice, is to nominate a person for
appointment as puisne judge and the nomination has to be con¬
firmed by at least seven members of the panel. According to the
other alternative, the panel should recommend three names, out
of which the President, in consultation with the Chief Justice, is to
select one for the appointment The above draft adopts substantial¬
ly the first alternative, utilising at the same time the Council of
State for this purpose. It will be noticed that the Council of
State includes the Chief Justice among its members and its com¬
position is such as to secure freedom from party bias. It should,
therefore, be a satisfactory substitute for the panel recommended
by the ad hoc committee.]
(3) A person shall not be qualified for appointment
as a judge of the Supreme Court unless he—
(a) has been for at least five years a judge of a High
Court; or
( b ) is a barrister of England or Northern Ireland of
at least ten years’ standing or a member of the
Faculty of Advocates in Scotland of at least ten
years’ standing; or
(c) has been for at least ten years a pleader of a High
Court or of two or more of such courts in succession.
Establishment
and constitu¬
tion of
Supreme
Court .
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520
FRAMING OF INDIA’S CONSTITUTION
Salaries, etc., of
judges.
Temporary ap¬
pointment of
acting Chief
Justice.
Appointment of
ad hoc judges.
Explanation 1 .—In this sub-section “High Court” means
a High Court which exercises or which, before the
commencement of this Constitution, exercised jurisdiction
in any territory included in Schedule I.
Explanation II .—In computing for the purpose of this
sub-section the standing of a barrister or a member of the
Faculty of Advocates, or the period during which a per¬
son has been a pleader, any period during which a person
has held judicial office after he became a barrister, a mem¬
ber of the Faculty of Advocates or a pleader, as the case
may be, shall be included.
(4) Every person appointed to be a judge of the Supreme
Court shall, before he enters upon his office, make and
subscribe before the President or seme person appointed by
him an oath according to the form set out in that behalf in
the Schedule... to this Constitution.
51. The judges of the Supreme Court shall be entitled
to such salaries and allowances, including allowances for
expenses in respect of equipment and travelling, upon
appointment, and to such rights in respect of leave and
pensions, as may from time to time be fixed by or under
Union law :
Provided that neither the salary of a judge nor his
rights in respect of leave of absence or pension shall be
varied to his disadvantage after his appointment.
52. If the office of Chief Justice of the Supreme Court
becomes vacant, or if the Chief Justice is, by reason erf
absence or for any other reason, unable to perform the
duties of his office, those duties shall, until some person
appointed by the President to the vacant office has entered
on the duties thereof, or until the Chief Justice has
resumed his duties, as the case may be, be performed by
such one of the other judges of the court as the President
may appoint for the purpose.
53. (1) If at any time there should not be a quorum
of the judges of the Supreme Court available to hold or
continue any session of the court, owing to a vacancy or
vacancies, or to the absence through illness or on leave
or in the discharge of other duties assigned by statute or
otherwise, or to the disqualification of a judge or judges,
the Chief Justice, or, in his absence, the senior puisne
judge, may in writing request the attendance at the sittings
of the court, as an ad hoc judge, for such period as may
be necessary, of a judge of a High Court, to be designated
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
521
in writing by the Chief Justice or in his absence by the
Acting Chief Justice or the senior puisne judge of such
High Court upon such request being made to him in
writing.
(2) It shall be the duty of the judge, whose attendance
has been so requested or who has been so designated in
priority to other duties of his office, to attend the sittings
of the Supreme Court at the time and for the period for
which his attendance shall be required, and while so attend¬
ing he shall possess the powers and privileges and shall
discharge the duties of a puisne judge of the Supreme Court.
54. The Supreme Court shall be a court of record and
shall sit in Delhi and at such other place or places, if any,
as the Chief Justice may, with the approval of the Presi¬
dent, from time to time appoint.
55. Subject to the provisions of this Constitution, the
Supreme Court shall, to the exclusion of any other court,
have an original jurisdiction in any dispute between any
two or more of the following parties, that is to say, the
Union, and any of the units, if and in so far as the
dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right
depends :
Provided that the said jurisdiction shall not extend to
a dispute to which an Indian State unit is a party, if the
dispute arises out of any provision of a treaty, engagement,
sanad, or other similar instrument, and if before the com¬
mencement of this Constitution there was a final decision
by His Majesty’s Government or the Secretary of State or
the Government of India or the Crown Representative
upon the same or substantially the same issue.
[Note: The qualification “if before the commencement of this
Constitution there was a final decision etc. etc.” is necessary (a)
because old issues once decided should not be reopened, and lb)
because the Rulers can reasonably expect to be safeguarded only
against adverse decisions by the new Union and not by the old
regime.]
56. (1) An appeal shall lie to the Supreme Court from
any judgment, decree or final order of a High Court of
a Province if the High Court certifies that the case involves
a substantial question of law as to the interpretation of
this Constitution and it shall be the duty of every such
High Court to consider in every case whether or not any
such question is involved and of its own motion to give
or to withhold a certificate accordingly.
Seat of Supreme
Court .
Original juris¬
diction of the
Supreme
Court .
Appellate juris¬
diction of
Supreme
Court in
appeals
from High
Courts in
Provinces in
certain cases .
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522
Appellate laris’
diction of
Supreme
Court in
appeals
from High
Courts In
Provinces in
other cases.
Appellate juris¬
diction of
Supreme
Court In
appeals from
Indian
States.
Enlargement
of the
jurisdiction
of the
Supreme
Court.
FRAMING OF INDIA’S CONSTITUTION
(2) Where such a certificate is given, any party in the
case may appeal to the Supreme Court cm file ground that
any such question as aforesaid has been wrongly decided
and, with the leave erf the Supreme Court, on any other
ground as welL
57. Subject to such rules as the Supreme Court may
make in this behalf, an appeal shall lie to the Supreme
Court from a judgment, decree or final order of a High
Court in a Province without any such certificate as afore¬
said, provided that
(a) the amount or value of the subject matter of the
dispute in the court erf first instance and still in dis¬
pute on appeal was and is not less than
twenty thousand rupees, or the judgment, decree or
final order involves directly or indirectly some claim
or question respecting property of the like amount
or value and provided further that where the
judgment, decree, or final order appealed from
affirms the decision of the court immediately
below, the appeal involves some substantial question
of law; or
(b) the Supreme Court gives special leave to appeal.
58. (1) An appeal shall lie to the Supreme Court
from any judgment, decree or final order of a High Court
in an Indian State included in Schedule I if the case
involves a substantial question of law as to the interpreta¬
tion of this Constitution or of any law of the Union Parlia¬
ment, or of the Legislature erf any unit other than the
State concerned.
(2) An appeal under this section shall be by way of
special case to be stated for the opinion of the Supreme
Court by the High Court, and the Supreme Court may re¬
quire a case to be so stated and may return any case so
stated in order that further facts may bs stated therein.
59. (1) The Supreme Court shall have such further
jurisdiction and powers with respect to any of the matters
in the Union Legislative List as the Union Parliament may
by Act confer.
(2) The Supreme Court shall have such further juris¬
diction and powers with respect to any matter as the Union
and any unit may by special agreement confer.
60. Without prejudice to the powers that may be
vested in this behalf in other courts, the Supreme Court
shall have power to issue directions in the nature of the
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NOTES ETC. TO TUB UNION CONSTITUTION COMMITTEE
523
writs of habeas corpus, mandamus, prohibition, quo war¬
ranto and certiorari appropriate to any of the rights
guaranteed in Part III of the Constitution.
61. (1) All authorities, civil and judicial, in the terri¬
tories subject to the jurisdiction of the Union shall act in
aid of the Supreme Court.
(2) The Supreme Court shall, as respects the said
territories, have power to make any order for the purpose
of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punish¬
ment of any contempt of court, which any High Court
has power to make as respects the territory within its juris¬
diction, and any such orders, and any orders of the Supreme
Court as to the costs of and incidental to any proceedings
therein, shall be enforceable by all courts and authorities
in every part of the territories subject to the jurisdiction
of the Union as if they were orders duly made by the
highest court exercising civil or criminal jurisdiction, as
the case may be, in that part
62. Where in any case the Supreme Court requires a
special case to be stated or restated by, or remits a case to,
or orders a stay erf execution in a case from, a High Court
in an Indian State included in Schedule I, or requires the
aid of the civil or judicial authorities in such State, the
Supreme Court shall cause letters of request in that behalf
to be sent to the Ruler of the State, and the Ruler shall
cause such communication to be made to the highest court
or to any judicial or civil authority as the circumstances
may require.
63. The law declared by the Supreme Court shall, so
far as applicable, be recognised as binding on, and shall
be followed by, all courts within the territories subject to
the jurisdiction of the Union.
64. (1) If at any time it appears to the President that
a question of law has arisen, or is likely to arise, which
is of such a nature and such public importance that it is
expedient to obtain the opinion of the Supreme Court
upon it, he may in his discretion refer the question to that
court for consideration, and the court may, after such
hearing as they think fit, report to the President there¬
on.
(2) No report shall be made under this section save in
accordance with an opinion delivered in open court with
the concurrence of a majority of the judges present at the
Enforcement
of decrees
and orders
of Supreme
Court and
orders as
to dis¬
covery etc.
Letters of
request of
Indian States.
Law declared by
Supreme Court
to be binding
on all courts.
Power of Presi¬
dent to consult
Supreme Court.
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524
FRAMING OF INDIA’S CONSTITUTION
Rules of court,
etc.
Ancillary
powers of
Supreme
Court.
Expenses of the
Supreme Court.
bearing of the case, but nothing in this sub-section shall
be deemed to prevent a judge who does not concur from
delivering a dissenting opinion.
65. (1) The Supreme Court may from time to time,
with the approval of the President in his discretion, make
rules of court for regulating generally the practice and pro¬
cedure of the court, including rules as to the persons prac¬
tising before the court, as to the time within which appeals
to the court are to be entered, as to the costs of and inci¬
dental to any proceedings in the court, and as to the fees
to be charged in respect of proceedings therein, and in par¬
ticular may make rules providing for the summary deter¬
mination of any appeal which appears to the court to be
frivolous or vaxatious or brought for the purpose of
delay.
(2) Rules made under this section may fix the mini¬
mum number of judges who are to sit for any purpose,
so however that no case shall be decided by less than three
judges:
Provided that all references under section 56 shall be
heard by the full court.
(3) Subject to the provisions of any rules of court, the
Chief Justice shall determine what judges are to constitute
any division of the court and what judges are to sit for
any purpose.
(4) No judgment shall be delivered by the Supreme
Court save in open court and with the concurrence of a
majority of the judges present at the hearing of the case,
but nothing in this sub-section shall be deemed to prevent
a judge who does not concur from delivering a dissenting
judgment
66. The Union Parliament may make provisions by
Act for conferring upon the Supreme Court such supple¬
mental powers not inconsistent with any of the provisions
of this Constitution as may appear to be necessary or desi¬
rable for the purpose of enabling the court more effectively
to exercise the jurisdiction conferred upon it by or under
this Constitution.
67. The administrative expenses of the Supreme
Court, including all salaries, allowances and pensions pay¬
able to or in respect of the officers and servants of the
court, shall be charged upon the revenues of die Union,
and any fees or other moneys taken by the court shall form
part of those revenues.
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
525
68. References in any provision of this Part of this
Constitution to a High Court in, or exercising jurisdiction High Courts in
in, an Indian State included in Schedule I shall be construed Indian states■
as references to any court which the President may, after
communication with the Ruler of the State, declare to be
a High Court for the purposes of that provision.
Chapter VI
Auditor-General of the Union
[Clause to be drafted.]
Chapter VII
Public Service Commission
[Clause to be drafted.]
Chapter VIII
Union Railway Authority
[Clauses to be drafted, if it is decided that provision
should be made for a Union Railway Authority on the
lines of the Federal Railway Authority as in the Act of
1935.]
Chapter IX
Union Defence Council
[Clauses to be drafted, if it is decided to set up a Union
Defence Council.]
Chapter X
Union Economic Council
[Clauses to be drafted, if it is decided to set up a
Union Economic Council.]
Chapter XI
Franchise for the Union Parliament.
The Union Parliament may from time to time make
provision with respect to all or any of the following matters,
that is to say :
(a) the delimitation erf territorial constituencies;
(b) the qualifications for the franchise and the pre¬
paration of electoral rolls;
(c) the qualifications for being elected as a member
of either House;
(d) the filling of casual vacancies in either House;
(e) the conduct of elections under this Constitution
and the methods of voting thereat;
(0 the expenses of candidates at such elections;
(g) corrupt practices and other offences at or in con¬
nection with such elections;
(A) the decision of doubts and disputes arising out of
or in connection with such elections;
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FRAMING OF INDIA’S CONSTITUTION
(i) matters ancillary to any such matter as aforesaid :
Provided that the superintendence, direction and con¬
trol of elections, including the appointment of election
tribunals, shall be vested in the President acting
in his discretion.
[Note: The effect of vesting these powers in the President
acting in his discretion will be to make available to him the
advice of the Council of State.]
PART V
International Reflations
1. The Union affirms its adherence to the Charter of
the United Nations and to the purposes and principles
enunciated therein.
[See note under Part V, clause 1, of memorandum.]
2. For the purpose of the exercise of any executive
function of the Union in or in connection with its defence
or its external affairs, die Government may, subject to the
provisions of the Charter of the United Nations, avail it¬
self of or adopt any organ, instrument or method of pro¬
cedure used or adopted for the like purpose by any other
State or by the members of any group or organization of
nations with which the Union is or becomes associated for
the purpose of international co-operation in matters of
common concern.
3. (1) Every international agreement to which the
Union becomes a party shall be laid before the House of
Representatives.
(2) The Union shall not be bound by any international
agreement involving a charge upon the revenues of the
Union unless the terms of the agreement shall have been
approved by the House of Representatives.
Explanation .—This section shall not apply to inter¬
governmental agreements of a technical or administrative
character.
4. No international agreement shall be part of the
municipal law of the Union, save as may be determined
by the Parliament of the Union.
[Note: These clauses correspond to article 29 of the Constitu¬
tion of Ireland.]
5. The Union shall honour all legitimate obligations
arising out of any treaties or agreements which immediately
before the commencement of this Constitution were in force
between His Majesty or the Government of India or
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
any other competent authority and the Head or the
Government of any other State, provided that such other
State honours any reciprocal obligations towards the
Union.
[See note under Part V, clause 6 of memorandum.]
PART VI
Distribution of Legislative Powers between the Union anJ
the Units
[Clauses to be drafted.]
part vn
Administrative Relations between the Union and the Units
and between the Units inter se
[Clauses to be drafted.]
part vm
Amendment of the Constitution
An amendment to the Constitution may be initiated in
either House of the Union Parliament and when the
proposed amendment is passed in each House by a majority
of not less than two-thirds of the total number of mem¬
bers of that House and is ratified by the Legislatures of
not less than two-thirds of the units of the Union,
excluding the Chief Commissioners’ Provinces, it shall
be presented to the President for his assent; and upon
such assent being given, the amendment shall come
into operation.
Explanation /.—For the purposes of this section only
the Legislatures of the units specified in Schedule...shall
be recognized
Explanation II .—The Union Parliament may from time
to time make such additions or alterations in file aforesaid
Schedule...as it thinks fit and such additions or
alterations shall have effect as if enacted in this
Constitution.
[Note : The explanations are necessary, because some of the
units, particularly where they consist of groups of Indian States,
may not possess proper Legislatures. If care is taken not to admit
a unit to the Union unless it possesses a proper Legislature, the
explanations may not be necessary.]
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FRAMING OF INDIA’S CONSTITUTION
PART IX
Transitional Provisions
[See Part IX of the memorandum]
(m) STATEMENT SHOWING K. M. PANIKKAR’S AND S. P. MOOKERJEE’S
REPLIES TO THE QUESTIONNAIRE
A. HEAD OF THE INDIAN UNION
Q. 1 —What should be the designation of the Head of the Indian Union?
Sardar K. M. Panikkar: President {See answer to question 6).
Dr. S. P. Mookerjee: Rashtrapati (President).
Q. 2 —How should he be chosen!
Dr. S. P. Mookerjee: Two Houses of the Union Legislature sitting to¬
gether should elect the ‘Rashtrapati’ by an absolute majority of votes of
members present and voting, the selection not being confined to the mem¬
bers of the Legislature.
Age qualification for election to the office of the President: 30 years.
Q. 3— What should be his term of office ?
Sardar K. M. Panikkar: 4 years.
Dr. S. P. Mookerjee: 6 years.
Q. 4 —Should he be re-eligible for election ?
Sard at K. M. Panikkar: Yes, but not for more than two consecutive
terms at a stretch.
Dr. S. P. Mookerjee: Yes, for a further term of not more than 3 years,
if two-thirds of the members of the two Houses present and voting
agree.
Q. 5 —Should the office rotate among the different communities in turn ?
Sardar K. M. Panikkar: {See answer to Q. 6).
Dr. S. P. Mookerjee: No such provision should be made.
Q. 6 —Assuming that the Indian Union is to have a President as its head,
should there be a Vice-President or Vice-Presidents?
Sardar K. M. Pannikar: Yes, one elected in the same manner as the
President. The Vice-President should belong to a community other than
that of the President.
Dr. S. P. Mookerjee: Yes, one elected in the same way as the President.
Q. 7 —What should be the term of office of a Vice-President ?
Sardar K. M. Panikkar: c ...... ___ .. .
> Same as that of the President.
and S. P. Mookerjee: j
Q. 8 —What should be the functions of the President ?
Sardar K. M. Panikkar: The Head of the State should be the one ex¬
pression of its unity, the de jure nominal head of the Executive, and the
repository of all such powers and duties as may be conferred or imposed
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
529
upon him under the Constitution Act. He shall also be the Commander-
in-Chief of the Defence Forces—Land, Air and Naval—of the Union, and
be responsible to see that the integrity of the Constitution is maintained
and that necessary and sufficient action is taken to meet any emergency
that may arise in the Union in the day to day working of the adminis¬
tration. He will exercise the powers of a constitutional head in regard
to the working of the Ministry and will exercise powers of dismissal of
the Executive when it is necessary to do so in the interest of the people
and the State and its Constitution.
Dr. S. P. Mookerjee: (0 President to act on the advice of the Union
Cabinet, subject to the Union Constitution and the laws of the Indian Union.
(/'0 Vested with the Commander-in-Chief of the Military, Naval and Air
Forces of the Union, but power to be exercised on the advice of the Union
Cabinet.
(///) Power to appoint the Prime Minister, and, on his advice, the other
Ministers. Representation of the different units in the Ministry should be
secured as far as possible.
(iv) Power to dismiss a Minister and to summon, prorogue and dissolve
the Legislature, on the advice of the Prime Minister. Summoning of the
Legislature obligatory if 40 members require.
(v) Power to accredit and receive ambassadors to and from foreign
states and to appoint heads of the Provinces.
(v0 Power to pardon and to commute or remit punishment.
(vi'O A Bill referred back to the Legislature by the President should
require the assent of two-thirds of the members thereof to become law.
(v/iQ Power to communicate with the Legislature after consultation with
the Cabinet.
(ix) In case of grave emergency and in matters of conflict between two
units, the President, on the advice of the Union Cabinet, shall have all the
powers necessary and ancillary including the power to suspend or annul
the acts, executive or legislative, of a Provincial Government.
Q. 9 —What should be the functions of the Vice-President ?
Sardar K. M. Panikkar: To preside over the meetings of the Senate, to
act as deputy to the President when so desired by the latter and to func¬
tion as President in case of vacancy in that office.
Dr. S. P. Mookerjee: To act as President in case of vacancy (see answer
to Q. 11) and to represent President on ceremonial occasions.
Q. 10 —Should the President be liable to removal ? If so. in what manner ?
Sardar K. M. Panikkar: Should not be liable to removal during period
of office.
Dr. S. P. Mookerjee: Removable only by impeachment on a charge of
grave misdemeanour or violation of the Constitution. Proceedings to be
initiated by the Lower House, and trial by the Senate: two-thirds majority
of the Senate required for the impeachment to be sustained.
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FRAMING OF INDIA’S CONSTITUTION
Q. 11 —How is a temporary vacancy in the office of the President to be filled7
Sardar K. M. Panikkar: By the Vice-President.
Dr. S. P. Mookerjee: Vice-President to act. In case of death, resigna¬
tion or incapacity, a new President should be elected within three months.
B. EXECUTIVE
Q. 12— What should be the nature and type of the Union Executive ?
Should it be of the British type (parliamentary) or the American type
(non-parUamentary) or the Swiss type (mixed) or any other type?
Sardar K. M. Panikkar:
and Dr. S. P. Mookrrjee: / •’"WnUr,.
Q. 13— If Parliamentary, should there be any special provision to secure
a stable executive?
Sardar K. M. Panikkar: No.
Dr. S. P. Mookerjee: Ministers removable only on a specific motion of
no-confidence passed by an absolute majority of members of the Lower
House. Salaries of Ministers to be fixed by statute and not to be altered
during term of office.
Q. 14— What should be the composition of the executive ? What should
be the maximum, if any, of the number of Ministers?
Dr. S. P. Mookerjee: No statutory limit as to number to be prescribed.
Ministers to be members of the Legislature within, say, six months after
appointment. Provision to be made for Deputy Ministers and Parliamen¬
tary Secretaries.
Q. 15— Should provision be made to secure representation of different com¬
munities on the executive? If so how?
Dr. S. P. Mookerjee: Yes, by convention and not by statutory reservation.
Q. 16— How should joint responsibility or co-ordination to be secured ?
Sardar K. M. Panikkar: By the Prime Minister.
Dr. S. P. Mookerjee: The statute should provide that the Ministers
are jointly and severally responsible to the Lower House.
Q. 17— How should the members of the executive be chosen ?
Sardar K. M. Panikkar: The person commanding a stable majority in
the Legislature to be the Prime Minister. The other Ministers to be ap¬
pointed on his advice.
Dr. S. P. Mookerjee: The Prime Minister to be elected by the Lower
House or the leader of the majority party to be the Prime Minister. The
other Ministers to be appointed on the latter’s advice.
Q. 18 —What provisions should be made for the removal of the executive ?
Sardar K. M. Panikkar: The President may dismiss the Cabinet if in
his opinion it has ceased to command the confidence of the Legislature.
The Cabinet is liable to be removed if a vote of no-confidence is passed or
an important measure of the Cabinet is disapproved.
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
531
Dr. S. P. Mookerjee: Removable cm a specific vote of no-confidence
passed by an absolute majority of the Lower House.
Q. 19— What should be the nature of relations between the Head of the
Union and the executive?
Sardar K. M. Panikkar: The President to conform to the traditions, usages
and customs of a constitutional head of State.
Dr. S. P. Mookerjee: President to act by and with the advice of the Union
Cabinet
C. LEGISLATURE
Q. 20—Should the Union Legislature have a single chamber or two
chambers?
Sardar K. M. Panikkar: Two chambers. Union Senate and Union Assembly.
Dr. S. P. Mookerjee: Two diambers.
Q. 21— If bicameral, how should the two Houses be constituted?
Sardar K. M. Panikkar: (a) Upper House: three from each unit elected
by the Legislature of the unit.
(b) Lower House : on the basis of population, one per million.
Dr. S. P. Mookerjee: (a) Upper House: one for every two million elected
by the Lower Houses of the Legislatures of the units.
(b) Lower House: on the basis of population: one per million, directly
elected by the people.
Q. 22— What provisions should be made for the adequate representation of
different communities and interests ?
Sardar K. M. Panikkar: Reservation strictly cm population basis for
Muslims, Sikhs, Anglo-Indians, Indian Christians and Scheduled Castes.
Special constituencies for women, labour and universities.
Dr. S. P. Mookerjee: No representation for special interests such as
landholders, etc. Reservation of seats to important minority communities
on the basis of population, joint electorate, and adult franchise.
Q. 23— What should be (a) composition, (b) franchise, (c) electorate,
(d) constituencies, (e) methods of election, and (f) allocation of seats in
respect of Union Legislature?
(a) Composition
(see answer to Q. 21.)
Franchise
Dr. S. P. Mookerjee: Universal adult franchise. Age 21 years.
(c) Electorate
Dr. S. P. Mookerjee: No separate communal electorates.
(d) Constituencies
Dr. S. P. Mookerjee: Equal electoral districts. Single-member constituen¬
cies. Where seats are reserved, multi-member constituencies.
Sardar K. M. Panikkar: T
and Dr. S. P. Mookerjee: J
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FRAMING OF INDIA’S CONSTITUTION
(e) Methods of Election
Sardar K. M. Panikkar: Election by the Legislatures of the units for the
Upper House and direct election for the Lower House.
Dr. S. P. Mookerjee: Upper House: Election by the Legislatures of the
units by the method of proportional representation with the single transfer¬
able vote (Hare system or List system). Lower House: Direct election and
simple majority.
(/) Allocation of Seats
Sardar K. M. Panikkar: 1 . 4 .
j n c » i* > * > ( see answer to 0 21.)
and Dr. S. P> Mookerjee f
Q. 24 —What should be the term of the Union Legislature ?
Sardar K. M. Panikkar: Upper House: Term continuous, one-fourth
retiring every alternate year. Lower House: Term five years.
Dr. S. P. Mookerjee: Upper House: Term continuous: six years, one-
third retiiing every two years. Lower House: Five years.
Q. 25 —If bicameral what should be the relative powers of the two Houses?
What provision should be made to resolve deadlocks ?
Sardar K. M. Panikkar: Money Bills to originate in the Lower House.
Disagreements on Money Bills to be resolved by a joint sitting of the two
Houses where a simple majority would decide the issue. The question
whether a Bill is a Money Bill should be referred to a committee
consisting of eight members from each House with the Chief Justice of the
Supreme Court as chairman, if two-fifths of the members of either House
so require.
Attempts to resolve deadlocks in respect of other Bills may be made
by holding joint sittings of the two Houses or by appointing committees to
negotiate a compromise or by a dissolution of the Lower House.
Dr. S. P. Mookerjee: Money Bills to originate in the Lower House.
Voting of supplies exclusively in the hands of the Lower House. Dead¬
locks to be resolved by a joint session where an absolute majority would
be required for a measure to become law.
D. JUDICIARY
Q. 26 —Should there be a separate chain of courts to administer Union
laws?
Sardar K. M. Panikkar: No.
Dr. S. P. Mookerjee: Decision to be left to the Union Legislature.
B. AMENDMENTS TO THE CONSTITUTION
Q. 27 —What provisions should be made regarding amendments to the
Constitution ?
Sardar K. M. Panikkar: Initiation: Either House of the Union Legislature.
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
533
Enactment: two-thirds majority in both the Houses of the Union Legislature
and ratification by the Legislature of each unit.
Dr. S. P. Mookerjee: Initiation: By one-fourth of the members of either
House of the Union Legislature. Enactment: two-thirds majority in each
of the two Houses of the Union Legislature, and two-thirds majority of
the Constitutional Convention or ratification by two-thirds of the Legisla¬
tures of the units (Lower House). The Constitutional Convention to be
composed of members either directly elected or by the Legislatures of the
units (Lower House).
(IV) A NOTE ON SOME GENERAL PRINCIPLES OF THE UNION
CONSTITUTION BY K. M. PANIKKAR
May 1947*
I
I propose in this note to supplement the answers I have furnished to the
questionnaire issued by the Constitutional Adviser. My views on the specific
issues raised in that document are contained in the replies and are not dealt
with here. In this note I confine myself to a few general observations which I
think are of fundamental importance to the constitutional structure of India.
2. It is generally held that in any constitution devised for India, there
should be a clear demarcation between the powers of the Union and the
powers of the constituent units. This has almost become a doctrine erf
constitutional orthodoxy. From Hamilton’s Federalist to Dicey’s Law of
the Constitution theorists have held steadfastly to this view. But it has to
be remembered that this doctrine of division of powers is one that pre¬
vailed in a time of peace and tranquillity; that in periods of national
stresses it invariably broke down, or was subjected to so much strain as
to create perpetual constitutional crises. In the United States of America
the breakdown of the federal principle—though it had been going on
slowly for a century—became so marked that the late President Wilson
declared that the United States from a plural verb had changed to a
singular one. It became patent to all during the bitter fight between
President Roosevelt and the Supreme Court, ending in the surrender of
the judiciary when the courts finally came to the conclusion that, “the
national government is entitled to employ any and all the powers to
forward any and all the objects of good government.” In a recent book
entitled The Fiscal Impact of Federalism in the United States, Professor
Maxwell shows also how the ramifications erf fiscal control have to a very
great extent nullified the constitutional division of powers in the United
States. Nor has the position been much better in Canada, where though
’Circulated to members of the Union Constitution Committee on June 4, 1947.
35
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as a result of the special predominance of Quebec and Ontario the Fede¬
ration has some special characteristics. But the development of the last
20 years, especially in the matter erf federal subsidies, has been such that
Premier Drew of Ontario has recently declared that the provincial govern¬
ments have been reduced to the status of “Pensioners of Ottawa” bereft
of any real control over their financial fortunes.
3. The demarcation of Union and Provincial powers which federalism
involves, is to my mind a dead issue, and the idea which has gained
prevalence that the Indian Constitution must be of the federal type is
definitely dangerous to the strength, prosperity and welfare of India.
Federation is a fair-weather constitution and in the circumstances of India
it is likely to be a dangerous experiment leaving the national government
with but limited powers, weak and consequently incapable of dealing with
national problems. The American example is totally inapplicable to our
circumstances as the United States of America had a hundred years of
peaceful development to enable it to build up a strong Centre.
4. Federation, with limited powers for the Centre, was an unavoidable
evil in India, so long as the Muslim majority Provinces had to be provided
for in an All-India Centre. Now whether the partition comes, or whether
a Hindustan constitution is created with a loosely confederated Centre, the
necessity for a federal constitution has ceased. It is no longer necessary
to provide for the very large measure of power for the units, which a full
Union with the Muslim majority Provinces would have rendered unavoid¬
able. I would, therefore, very strongly urge, that the basic principle of
the Constitution should be a unitary (me, with large devolution of powers
to the Provinces, and with suitable provisions for the States and other
units so desiring to accede in a limited manner to the Centre.
5. This, in fact, has been the administrative and political tradition of
India. The Regulating Act established a unitary government and the
great provincial administrations were no more than local governments, as
they were formally designated. The 1935 Act brought in the idea of
Federation, primarily because such a conception reduced the possibility
of a Hindu majority Centre dominating the Muslim majority Provinces and
also in a measure to enable the States to accede to a Union. The ex¬
perience of the last ten years, especially in relation to famine and food
^minis tration, has shown the weakness of this system. At least for the
Hindustan area what we have to do is to go back to the idea of the Regu¬
lating Act, ije., the supremacy of the Centre over the Provinces, while
normally keeping with the Provinces the same powers as are given to them
in the Act of 1935.
6. Further, let it be remembered that never has Federation as a consti¬
tutional device been supported or accepted, except where the independence
of the units made any other system impracticable. There has never been
a case of a unitary system breaking up and then joining as units in a
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTBB
535
Federation. In the 1935 Act so far as British India was concerned the
limitation of Central authority was considered unavoidable in order to give
the guarantee of freedom to the Muslim majority Provinces. Since that
question no longer has to be considered, the raison d’etre of tweaking up
the Central structure of British India vanishes and the never-too-desirable
system of government based on checks, prohibitions, and limitations, all
trying to stunt the growth of a united nationhood, need no longer be con*
sidered. Federation for British India is no longer a necessity and should
definitely be eschewed.
n
7. How will the States fit into such a scheme? It is dear that if a
unitary government is postulated for a Union of the Provinces, the States
cannot be brought into it except by force. The alternative is what was
contemplated in the 1935 Act, that the States should join the Union only
for a limited range of subjects more or less similar to the subjects includ¬
ed in List I of the Seventh Schedule attached to that Act. The accession
of the States must be on a uniform basis, i\e., there should be no variation
in the powers that the Union will exercise in relation to each State. This
does not, however, mean that fiscal, financial and administrative arrange¬
ments should not exist with individual States or groups of States in matters
where special rights exist. For example, if customs duty is a Central
subject, then the legislative authority of the Union must be uniform in
regard to all States, though arrangements may be negotiated with maritime
States for administration of custom duties and financial agreements may
be entered into with them for sharing the revenue. The general concep¬
tion of the scheme should be what it was before 1935—a unitary Central
Government of India entering into agreements with the States. Up to
now such agreements show great variation. In the case of the Union
Government, a uniform principle will be followed subject to administrative,
financial and fiscal arrangements where necessary.
m
8. A third aspect of the constitution which I think requires careful consi¬
deration is the paramount authority which is intended to be vested in the
Supreme Court in matters relating to the Constitution. This I am con¬
vinced is a most dangerous principle. I have in a measure dealt with
this problem in my minute of dissent on the Report erf the Sub-Committee on
Fundamental Rights from which I venture to quote the following passage:
...that the enforcement of such rights excepting in regard to matters in¬
volving personal liberty may bring the State into conflict with the units
which could not be resolved by any other method than federal execution,
i.e„ the use of the armed forces of the Union to compel a unit to abide
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FRAMING OF INDIA’S CONSTITUTION
by the decision of the Supreme Court. We do not yet know the consti¬
tution, composition and scope of this body. The idea seems to be widely
prevalent that the Supreme Court will come into existence with a prestige
and authority similar to what is now enjoyed by the Federal Court of
the U.S.A or the Privy Council of England. But it is well to remember
that the Federal Court in America obtained its present prestige only after
many hard fights. In fact, in countries where State or provincial patrio¬
tism was a marked characteristic of national life the vesting of authority
in a Supreme Court has not always been found to be effective. And in
a country like India where the States or Provinces may conceivably defy
or refuse to give effect to a decision of the Supreme Court, there will be
insuperable difficulties in the Union enforcing military, political or econo¬
mic sanctions. In short, to entrust the Supreme Court with this authority
is to expect too much from it and to render it, even before it is constituted,
a subject of controversy in which its prestige is not likely to increase.
9. Hamilton who was the advocate of the supremacy of the Federal
Court in a well-known essay stated the case for investing the court with the
final authority in regard to the validity of laws in the following terms:
No legislative Act contrary to the constitution can be valid. To deny this
would be to affirm that the deputy is greater than his principal; that the
servant is above the master; that the representatives of the people are
superior to the people themselves...
10. It will be noticed that the whole of this argument is based on the
non-sovereign character of the legislature, of the constitution being the
embodiment of the final and unalterable will of the people, which the
legislature cannot modify, interpret or change on the doctrine that the
sovereign peoples’ will cannot be declared by their representatives but
only by certain selected officials. This is a variation of the theme that
revelations can only be interpreted by magicians.
11. It may be argued that the Acts of the Indian Legislature today are
subject to judicial disallowance by the Federal Court and theretore no
new principle is being introduced in the Constitution. This is a totally
fallacious view. The Indian Constitution of today is the expression of
the will of the British people and can be changed by the sovereign legislature,
the British Parliament without the least fear of judicial disallowance.
The Indian Legislature cannot change it, because it is a non-sovereign body.
12. It may well be conceded that certain fundamental rights, especially
meant for the protection of minorities etc., should not be changed by the
legislature except by a specially provided machinery, but to entrust the
judiciary with the right of questioning the normal legislative Acts of
Parliament is to invite confusion, especially in a country where litigation is
a pastime, and law the most popular as well as the most lucrative of all
professions.
13. The weakness of judicial disallowance has been analysed in a recent
study of the American Constitution in the following words:
Regions the fathers never knew were passing under federal control. The
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537
court was given the impossible task of finding in legal terms, which daily
grew more outworn, solutions to economic problems which daily grew
more subtle. Sometimes it has intoned the obscurities of dead philoso¬
phers. at others, it has voiced the election returns.
14. Besides the Constitution to which such inviolable sanctity is proposed
to be attached, certain special pujaris are created for its service and pro¬
tection and an elaborate code of ritual framed for its worship will
soon become a superstition in India stultifying all progress and all
development.
15. The limits of judicial disallowance of legislative Acts should, there¬
fore, be strictly laid down and must be confined to the few really
fundamental rights incorporated in the Constitution, as in the case of the
Constitution of the French Republic where it is provided that the republican
character of the State cannot be changed by laws. Otherwise we shall be
providing for a breakdown of the constitution and for a failure of the
democratic experiment.
IV
16. What should be the objective of our Constitution? That has been
clearly defined in the Resolution of the Constituent Assembly. What we
have to examine is whether a federal constitution such as the one generally
contemplated will meet the defined objective; or indeed any objective which
has the creation of a firm Indian nationhood as its ideal. George Washing¬
ton after two terms of Presidency warned the infant United States against
the danger to the Union of the prevalent ideas of local patriotism, and that
passage is worth quoting:
The unity of Government, which constitutes you one people, is also now
dear to you. It is justly so: for it is a main pillar in the edifice of your
real independence, the support of your tranquillity at home, your peace
abroad, of your safety, of your prosperity; of that very liberty, which you
so highly prize. But as it is easy to foresee that from different causes
and from different quarters, much pains will be taken, many artifices em¬
ployed to weaken in your minds the conviction of this truth, as this is the
point in your political fortress against which the batteries of internal and
external enemies will be most constantly and actively (though often covert¬
ly and insidiously) directed, it is of infinite moment, that you should pro¬
perly estimate the immense value of your national union to your collec¬
tive and individual happiness, that you should cherish a cordial, habitual, and
immovable attachment to it, accustoming yourselves to think and speak
of it as of the Palladium of your political safety and prosperity, watching
for its preservation with jealous anxiety, discountenancing whatever may
suggest even a suspicion that it can in any event be abandoned, and indig¬
nantly frowning upon the first dawning of every attempt to alienate any
portion of our country from the rest, or to enfeeble the sacred ties which
now link together the various parts.
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FRAMING OF INDIA’S CONSTITUTION
17. The tendency of the Provinces to fall apart is already noticeable:
and it cannot be presumed that there will be a High Command always
watching and supervising the activities of Provincial Ministries. It can*
not also be presumed that the party High Command will in future carry
the same weight vis-a-vis the Provincial Ministries. One thing should be
clear. In a federation, the all-India Centre will not have authority over
the Provinces and the structure of administrative unity built up in
Hindustan will fall to pieces unless the Centre is given an overriding power.
The unity of law which binds the people together may itself vanish unless
civil and criminal law is uniform. Company legislation, banking, insurance
and other spheres of economic activity have to be controlled by uniform
laws: otherwise we shall see the chaos of Delaware corporations magnified
beyond imagination. And above all, planning has to be a Central subject.
So the form of federation will be seen to mean little when the realities of
economic problems have to be faced.
18. It may be asked how the States will function in relation to such a
unified Central Government in India. As stated before, their accession
will only be for a limited list of subjects, covering what may be called
the present list of all-India subjects. In matters like civil and cri minal
law, company and banking legislation, the States accept the British Indian
legislation as normative and will follow it in the main as they do even
now. As long as the British Indian Provinces are united in a strong
Centre, the problem of approximating the States to the policies of the
Union in subjects on which they do not accede may well be left to the
pressure of public opinion in the States.
19. Essentially the question to answer is: What does India expect of a
Central constitution? Is it merely meant to look after Defence, Foreign
Affairs and Communications? Even the Cabinet Mission contemplated
that at least so far as the group constitutions were concerned the functions
would cover a much largo' range. Now we are really combining both group
and Central functions and naturally we have to approach the problem not
merely from the point of view of the three subjects earmarked for the
Centre but also of the primary social functions of the State, which would
have been left to the groups. The limitation of Central power, which a
federal constitution implies, denies the social functions of the State so far
as the Union is concerned. In Canada the entire fight with the Provinces
has been on the question of social services. In America the New Deal
controversies raised the same issue. In India the problem is much more
important. The main function of government will be to raise the standards
of the common man, to educate him, to provide him with medical facilities
and to create in all a loyalty to the Union, without which the whole structure
will break down. To place die emphasis on the rights of the units, as a federal
system must inevitably do, and to entrust the effectuation of those rights to
courts is to put a premium on backwardness and to invite disaster.
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NOTES Era TO THE ONION CONSTITUTION COMMITTEE
539
(v) A FURTHER NOTE ON SOME PRINCIPLES OF THE UNION
CONSTITUTION BY K. M. PANIKKAR
June 3, 1947*
The object of this note is to examine the effect of modern defence prob¬
lems on the constitutional structure of India.
2. All federal constitutions have been found unsuitable in times of war
and in the United States which is the prototype of such constitutions, the
powers of the President in times of war are so great that the Federal
Constitution may practically be considered! as suspended. In the 19th
century and generally speaking till the Second World War, America was
situated away from centres of actual warfare so that her intervention
in European conflicts was more or less that of an outsider who did not
have to face the problems of warfare in her country. In fact, all previous
federations of modem times, with the notable exception of the Bismarkian
Reich, were placed in areas far removed from actual military conflict
(Canada, Australia, U.S.A., the Central and South American Republics.)
The German Reich as was pointed out by Treishke at the time was only
federal in name as its effective power was based on the overwhelming
strength of Prussia; and the federal principle was applied only as a safe¬
guard for the rights of States like Bavaria, Saxony and Wutenburg and not
in effect as a limitation on the Central power which was vested in the Prus¬
sian monarchy. This is even more true in the case of U.S.S.R., where
under a federative form Central authority is controlled by European Russia
in an effective manner. In fact, a proper federation cannot undertake the
defence of a country.
3. India has never really freed the problem of defence. All the military
activity she has had to undertake, has been for the protection of her
frontier against ill-armed medieval States and unorganized tribesmen,
while the major problem of India’s defence was bound up with the over¬
whelming might of Britain. It is the comparative weakness of Britain
which became evident in the second world war, that has all of a sudden
brought India face to face with the question of organizing defence on a
national scale.
4. What is the problem of defence today? As a recent authority on
military matters has stated: War has now “passed definitely into the
industrial phase of economic history : the industry of war combines two
techniques: the technique of peace which supplies its resources” and the
technique of actual warfare. If India has to free the issue of defence
squarely, that is both in its peace organization, involving industrial plan¬
ning, creation of national technical efficiency on a large all-India scale,
higher research in sciences and, what is more, an integrated defence force,
'Circulated to members of the Union Constitution Committee on June 4, 1947.
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FRAMING OF INDIA’S CONSTITUTION
then a unitary Central Government for British India is unavoidable. The
distinction between peace-time and war-time would not seem to be appli¬
cable in the period where the problems of security have undergone a
revolutionary change with the introduction of atomic energy and self-
propelled weapons. In fact we have to shed all our previous ideas of
safety and security andi of the powers to be entrusted to the authority
which has to undertake our defence. The structure of the constitution has
to be thought out in this context. Any idea that such extra powers as are
required for the Centre need only be taken over after war is declared is
fatuous in the circumstances of today.
5. In fact a federal Centre for the major Provinces postulates the pro¬
tection of a major power, which will hold its iron ring around us, to
enable India to develop peacefully. This was the conception of the Gov¬
ernment of India Act, 1935, and all the negotiations that preceded it. It
was to be a protected India enjoying self-government, where the defence
power was to remain mainly with Britain. It was a possible attitude be¬
fore the last war; but today, it has become impossible in terms of Britain’s
strength. Clearly, therefore, the Constitution we frame for India should
enable the Central Government to deal with defence in its widest aspects
both in times of peace and in times of war.
6. What is defence in its widest aspects? It is not merely the training
and equipment of an army which will guard the frontiers, garrison the
country and go into action when war is declared. It is Banes, who dec¬
lared when Revolutionary France was under attack that every citizen young,
old, women and children had to function in relation to national defence,
and the years that have elapsed since this doctrine was accepted by France
has only made offence and defence more and more “total”. So with a
total defence to face, and with but a weak and insecure national inte¬
gration with which to face it, we shall be courting disaster, if we now
create a Centre limited by legalism and cramped by the indefeasible rights
of Provincial units.
(VI) MEMORANDUM ON THE PRINCIPLES OF THE UNION
CONSTITUTION PREPARED BY N. GOPALASWAMI AYYANGAR
AND, ALLADI KRISHNASWAMI AYYAR
June 1947*
I. THE UNION OF INDIA
1. The Union of India is an Independent Sovereign Republic; and all
powers pertaining or incidental to the government of the territories of the
•Exact date of the preparation of the memorandum is not known; it was circulated
to the members of the Union Constitution Committee on June 4, 1947.
\
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTEE
541
Union and all rights, authority and jurisdiction in relation to such gov¬
ernment, to whomsoever belonging or by whomsoever exercisable hitherto,
are declared to be derived from the people and are exercisable
by, or on the authority of, the organs of State established by this
Constitution.
2. The Union will comprise
(1) The Federation of India
(a) with constituent units consisting of the area specified in Sche-
dule I, which were Provinces or parts of Provinces of British
India immediately prior to the establishment of the Union, or
which are Indian States, and
( b ) directly administering the areas which are specified in Schedule
II; and
(2) the Indian States, other than those specified in Schedule I, which
are specified in Schedule III and which have entered into a merely
political relationship with the Federation.
3. A common policy in respect of the Union as a whole as regards
Defence, External Affairs and strategic Communications is geographically
and otherwise a necessity; equally necessary, in the case of non-federating
Indian States comprised in the Union, are:
their protection from external aggression, the ultimate guarantee to
them of internal order and good government, and the devising of
machinery for the administration of matters of common concern to
them and the Federation.
For these purposes, the Federation and the non-federating Indian States
should enter into a political relationship, the basic principles of which will
be laid down in the Constitution.
4. (1) The federal organs of government will exercise all powers and
jurisdiction
(a) in the areas of the constituent units of the Federation, in respect
of subjects and matters which are classified by the Constitution as
federal and concurrent, and
(b) in the directly administered areas, in respect of all subjects and
matters.
(2) Powers connected with the exercise of the functions of the Federa¬
tion in its relations with non-federating Indian States may be exercised by
the federal organs of government only in accordance with the basic prin¬
ciples laid down in the Constitution and with such terms and conditions
as may be agreed on between the Federation and the Indian States
concerned.
II. THE HEAD OF THE UNION—THE PRESIDENT
1. The Head of the Union of India, to be called the President, will be
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FRAMING OF INDIA’S CONSTITUTION
elected by the two chambers of the Parliament of the Federation sitting
together in a joint session specially convened for the purpose.
2. A candidate for the office of President should be not less than 35 years
of age, should be a citizen of the Federation and should have resided in
the Federation for not less than 7 years immediately preceding the election.
3. The President will hold office for a term of 3 years. He will be paid
for his services a salary which may not be increased or decreased during
his term of office and, during such term, he will not be entitled to receive
any other emoluments from the Union or from any of the units.
4. The President may be impeached for specific misbehaviour on a
charge preferred by either of the two chambers of the Federal Parliament.
The charge will be investigated by the other chamber and the President
may be removed from his office if, by a resolution supported by not less
than two-thirds of its total membership, such chamber declares that the
misbehaviour found by it to be proved against the President is such as to
render him unfit to continue in office.
5. The supreme command of the land, sea and air forces of the Union
will be vested in the President.
6. (1) The functions of the President will indude the following:
Representing the Union in its external relations;
Appointing and accrediting diplomatic representatives to other countries
and receiving such representatives from those countries;
Proclaiming the existence of a state of war and declaring war with the
prior consent of Parliament;
Summoning and proroguing the two Houses of Parliament and dissolving
the House of Representatives;
Signing laws enacted by Parliament;
Appointing and dismissing the Prime Minister and other members of the
Cabinet: and
Granting pardons.
(2) The President may exercise such other powers and perform such
other functions as are conferred on him by the Constitution or law.
III. THE LEGISLATURE OF THE UNION—THE PARLIAMENT
1. The Parliament of the Federation will consist of the President and
two chambers to be styled the House of Representatives and the Senate
respectively (The names for the two chambers are tentative).
2. (1) The strength of the House of Representatives will be so fixed as
to give, on the average, in each constituent unit of the Federation, not
less than one member for each million of the population and not more
than one member for each half million of the population.
(2) Members will be elected by universal adult suffrage in territorial
constituencies, the electors voting in joint electorates. Seats will, however,
be reserved in such electorates for minority communities in accordance
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEB
543
with the resolution of the Constituent Assembly on the report of the Advisory
Committee.
(3) If the number of seats reserved for particular minority communities
does not exceed the number they are entitled to in proportion to their
population, members of such communities will be free to contest elections
for non-reserved seats as well.
3. The Senate will have a strength not exceeding one half of the strength
of the House of Representatives. It will be distributed amongst the cons¬
tituent units and directly administered areas as for as possible in pro¬
portion to the population of those units and areas. The number of
members assigned to each unit will be elected by the members of the Legis¬
lature erf the unit functioning as a joint electorate. The number of seats
to be reserved for minorities will be in accordance with the resolution erf
the Constituent Assembly on the report erf the Adviseny Committee
4. (1) The folle>wing disqualifications will be prescribed in the Consli-
tutioo for membership erf either chamber:
(a) Holding any office erf profit under the Government other than that
erf Minister;
(b) Declaration erf unsoundness erf mind by ce>mpetent court;
(c) Being an undischarged bankrupt;
id) Conviction for the offence of corrupt practices, or other election
offences;
(e) In the case of a legal practitioner, suspension from practice;
if) Undisclosed interest in a contract with Federal Government.
(2) Pending the enactment of the necessary law by the Federal Parlia¬
ment in this regard, power will be conferred on the provisional Govern¬
ment to issue orders and directions for the delimitation of constituencies,
the method and conduct of elections, the filling of casual vacancies, the
prohibition and punishment of corrupt practices or election offences, the
decision of disputed elections and other matters connected with elections
and election procedure.
5. There will be a Speaker and a Deputy Speaker for the House of
Representatives and a Chairman and a Deputy Chairman for the Senate.
They will be elected by the respective chambers in the manner prescribed
by or under the Constitution. Their salaries and allowances will be fixed
by law and will not be varied during their tenure of office.
6. (1) The Senate will be a permanent body not subject to dissolution,
but one-third of its membership will be renewed in each year in accor¬
dance with the procedure that will be prescribed in the Constitution.
(2) Unless sooner dissolved, the House of Representatives will continue
for five years from the date appointed for its first meeting and at the end
of that period will stand dissolved.
7. The chambers of Parliament will be summoned at least once every
year and there should not be a longer interval than twelve months between
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FRAMING OF INDIA’S CONSTITUTION
two sessions. The President will have power to summon the chambers or
either of them to meet at such time and place as he may appoint, to proro¬
gue the Houses and to dissolve the House of Representatives.
8. A member of the Cabinet will have right to speak in and otherwise take
part in the proceedings of, either chamber but he will not be entitled to vote
in the diamber of which he is not a member.
9. The President may, in respect of any matter of national or public im¬
portance, address either chamber of Parliament or both chambers assembled
together and few that purpose require the attendance of members. He may
also send messages to either chamber with respect to any business pending
therein or otherwise.
10. Subject to the provisions of the Constitution and the rules and standing
orders affecting the procedure in Parliament, there will be freedom erf
speech in both chambers of Parliament. No member of either chamber will
be liable to any proceedings in any court in respect of anything said or any
vote given by him in that chamber nor will any person be liable in respect
of the publication by or under the authority of either chamber of any report,
paper, votes or proceedings.
11. Money Bills will be initiated only in the House of Representatives;
other Bills may be introduced in either chamber of Parliament.
12. When a Bill has been passed by both the Houses, it will be immediately
submitted to the President for his signature, which should be affixed within
seven days of such submission, unless the President, before the expiry of that
period sends the Bill back to Parliament with a message requesting that it
will reconsider the Bill or any specific provisions thereof and in particular
will consider the desirability of making such amendments as he may recom¬
mend in his message. The House will thereupon reconsider the Bill accord¬
ingly. The Bill as passed after such reconsideration will be submitted to and
signed by the President.
13. In the case of disagreement over a Bill between the two chambers, the
President may convene a joint sitting of the two chambers for its considera¬
tion. The Bill whether with or without amendments as passed by a majority
of the total number of members of both chambers present at the joint sitting
will be deemed to have been duly passed by both chambers.
14. A recommendation of the Cabinet will be necessary for any proposal
in either chamber of the Federal Parliament few imposing or increasing any
lax, for tlie appropriation of public revenues or few any proposal affecting
the public debt or affecting or imposing any charge upon public
revenue.
15. A statement of the estimated revenue and expenditure of the Federa¬
tion together with a statement of all proposals for the appropriation of
those revenues will be laid in respect of every financial year before both
chambers of Parliament by the Cabinet.
16. Proposals for the appropriation of revenues other than those excepted
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
545
by the Constitution or by law will be submitted in the form of demands
for grants to the vote of the House erf Representatives. The House
will have power to assent or refuse assent to any demand or to reduce the
amount specified therein whether by way erf a general reduction of the
total amount of the demand or of the reduction e>r omission of any specific
item or items included in it.
17. Similar procedure will be followed in respect erf all prope>sals for
the appropriation erf revenues to meet expenditure not included in the
annual estimates which it may become necessary to incur during the
course of the financial year.
18. (1) Each chamber of the Federal Parliament may, subject to the
provisions of the Constitution, make rules for regulating its procedure and
the conduct of its business.
(2) The President may make rules as to the procedure with respect to
the joint sittings of and communications between the two chambers.
19. All proceedings in the Parliament of the Federation will be con¬
ducted in . . . language, but the rules of procedure of each chamber and
the rules with respect to joint sittings will provide for enabling persons
unacquainted or not sufficiently acquainted with such language to use
another language.
Legislative Powers
20. (1) The Federal Parliament will have exclusive power to make laws
for the peace, order and good government of the territories comprised in
the Federation in relation to all matters coming within the classes of sub¬
jects mentioned below:
(Here enter the list approved on the Report of the Union Subjects Com¬
mittee.)
(2) The Federal Parliament will have, concurrent with the Legislatures
of the units, power to make laws for the peace, order and good govern¬
ment of the territories comprised in the Federation in relation to all mat¬
ters coming within the classes of subjects mentioned hereunder:
(Here enter the list erf concurrent subjects accepted on the Report of the
Union Subjects Committee.)
(3) The power to make laws under sub-paras (1) and (2) will include
power to make laws in relation to matters which are inherent or implied
in or resultant from the classes of subjects specified therein.
(4) The power to make laws for the peace, order and good government
of the territories comprised in the Federation in relation to matters not
coming within the categories of subjects and matters referred to in. sub¬
paras (1) to (3) will vest exclusively in the Legislatures of the units.
21. (1) In relation to the subjects included in the concurrent list laws
made by unit Legislatures will be confined in their operation to the territories
of the units.
(2) The Federal Parliament will not in respect of such subjects be able
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FRAMING OF INDIA’S CONSTITUTION
to legislate in such a way as to impose financial obligations on the units
without their concurrence.
22. When a law of a unit is inconsistent with a law of the Federation
the latter will prevail and the former will to the extent of the inconsistency
be void.
23. The Federal Parliament will have power at the request of a unit
or units to pass a law which will be operative in those units and in any
other unit which may subsequently adopt it on a subject which would
otherwise fall within the legislative competence of a unit only. Such a
Federal Act will be subject, as regards any unit to which it applies, to
subsequent amendment or repeal by the Legislature of that unit.
Emergency Legislative Powers of President
24. The President will have power, if the Cabinet is satisfied, at a
time when the Federal Parliament is not in session, that an emergency
exists which renders such a course necessary, to make and promulgate any
such Ordinances for the good government of the Federation or any part
thereof as the circumstances of the case require, containing such provisions
as under the Constitution Act it would have been competent for the
Parliament to enact. An Ordinance so promulgated will have the same force
and effect as an Act of the Federal Parliament but every such Ordinance
(a) will be required to be laid before the Federal Parliament and will
cease to operate at the expiry of six weeks from the date of the re¬
assembly of the Parliament unless both chambers have in the mean¬
time disapproved it by a resolution, in which case it will cease to
operate forthwith, and
( b ) will be subject to withdrawal at any time by the President.
25. If the President declares, by a proclamation, that a grave emergency
exists which threatens the security of India whether by war or internal
disturbance, the Federal Parliament will have power to make laws for a
unit or any part of a unit with respect to any of the matters within the
exclusive competence of the unit Legislature. This power, will however,
not restrict the power of a unit Legislature to make any law which it
has power to make, but if any provision of such a unit law is repugnant to
any provision of a Federal law made under this paragraph, the Federal law
will prevail and the unit law will to the extent erf the repugnancy be void.
IV. THE EXECUTIVE OF THE UNION—THE CABINET
1. The executive power of the Federation will, subject to the provisions
of the Constitution, be exercised by, or on the authority of a Council of
Ministers, to be called the Cabinet, which will be collectively responsible
to the House erf Representatives.
2. The Cabinet will consist of a Prime Minister who will be its head and
such number of other Ministers of State as may be provided for by law
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NOTES ETC. TO THE ONION CONSTITUTION COMMITTEE
547
or in the absence of any law as may be fixed by the President.
3. The President will appoint the Prime Minister from amongst the
members of the Federal House of Representatives and, in doing so, will
ordinarily invite the person who, in his judgment, is likely to command
the largest following in the House to accept the office. The other Minis¬
ters of the Cabinet will be appointed by the President on the advice of
the Prime Minister. In making appointments of Ministers, the President
will have due regard to the representation of the different regional areas
in the Union as well as of important minority communities.
4. The Prime Minister will keep the President generally informed on
matters of domestic and foreign policy.
5. The President may make rules for regulating the disposal of govern¬
ment business, the procedure to be observed in its conduct, the authenti¬
cation of orders and other instruments made and executed in the name of
the Government and the transmission to himself erf all such information as
he may require.
V. THE JUDICATURE OF THE UNION—THE FEDERAL AND OTHER COURTS
(To await the Report of the Special Committee on the Judiciary.)
VI. ADMINISTRATIVE RELATIONS BETWEEN FEDERATION AND UNITS
1. (1) Subject to the provisions of the Constitution, the executive authority
of the Federation extends to all matters with respect to which the Federal
Parliament has power to make laws.
(2) The Federal Parliament in legislating for an exclusively Federal subject
may devolve upon the Government of a unit, whether a Province, an Indian
State or other area, or upon any officer of that Government, the exercise on
behalf of the Federal Government of any functions in relation to that subject.
2. (1) It will be the duty of the Government of a unit so to exercise its
executive power and authority in so far as it is necessary and applicable
for the purpose as to secure that due effect is given within the unit to
every Act erf the Federal Parliament which applies to that unit: and the
authority of the Federal Government will extend to the giving of directions
to a unit Government to that end.
(2) The authority of the Federal Government will also extend to the
giving of directions to the unit Government as to the manner in which the
latter’s executive power and authority should be exercised in relation to
any matter which affects the administration of a Federal subject.
vn. FINANCE
1. Revenues derived from sources in respect of which the Federal
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FRAMING OF INDIA’S CONSTITUTION
Parliament has exclusive power to make laws will be allocated as Federal
revenues but in the cases specified in the following paragraphs the Federa¬
tion will be empowered or required to make assignments to units from.
Federal revenues.
(The actual terms of the provisions to be incorporated in paras 2 to 10
will have to be very carefully drawn up and it will be necessary to appoint
a sub-committee including representatives of Indian States also to investigate
the financial problems confronting the Federation in some detail and making
considered recommendations.)
2. Customs—To be drafted later.
3. Federal excise—To be drafted later.
4. Export duties—To be drafted later.
5. Duties on property passing on death.
Taxes on mineral rights and on personal capital, terminal taxes on rail¬
way, water and air borne goods and passengers and taxes on railway
tickets and goods freights, stamp duties, (to be drafted later.)
6. Taxes on income other than agricultural income and taxes on com¬
panies—To be drafted later.
7. The Federal Government will have power to make subventions or
grants to units out of Federal revenues on such principles, for such purposes
and periods and on such terms and conditions as may be prescribed.
Borrowing Powers
8. The Federal Government will have power to borrow for any of the
purposes of the Federation upon the security erf Federal revenues subject to
such limits and conditions as may be fixed by Federal law.
9. The Federal Government will have power to grant a loan to, or
guarantee a loan by, any unit erf the Federation on such terms and under
such conditions as it may prescribe.
10. The Constitution will make provision for the appointment of an
Auditor-General. The appointing authority for the Auditor-General and
his tenure should be similar to those of a judge of the Federal Court.
Subject to an age limit, he will be removable only by a resolution carried
in both Houses of the Federal Parliament. He will be declared ineligible
for further office under the Federal Government. His report on the Federal
accounts will be submitted to the President, who will be required to lay it
before the Federal Parliament.
VIII. DIRECTLY ADMINISTERED AREAS
1. (1) Each of the areas referred to in para 2(lXb). section I, will be
administered, subject to the provisions of the Constitution, by an officer
who will be appointed by the Federal Government.
(2) In each such area the officer so appointed will have all such
executive power and authority as may be necessary for the administration
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NOTES ETC. TO THE UNION CONSTITUTION COMMITTEE
549
of the area and in the exercise of this power and authority he will be
directly subordinate to the Federal Government
(3) The Federation may make by law special provision for the establish*
ment of local legislatures in such areas.
2. The Union Constitution will contain provision for the administration
of tribal areas.
[The provision to be made will incorporate the scheme for such ad*
ministration approved by the Constituent Assembly on the Report of the
Advisory Committee appointed under paragraph 20 of the Cabinet
Mission’s Plan.]
IX. PROPERTY, CONTRACTS, LIABILITIES, SUITS
To be drafted later.
X. THE SERVICES
To be drafted later.
XI. MISCELLANEOUS
1. The provisions for the protection of minorities specified in schedule—
and approved of by the Constituent Assembly on the Report of the Advisory
Committee appointed under paragraph 20 of the Cabinet Mission’s Plan
will be incorporated in the Constitution.
2. If, after consulting the heads of the units, the President is satisfied
that the public interests would be served by the establishment of an inter-
unit Council fen: enquiring into and advising upon disputes which may
arise between units, investigating and discussing subjects in which some
or all of the units or the Federation and one or more of the units have
a common interest or making recommendations upon any such subject and
in particular recommendations for the better co-ordination of policy and
action with resDect to that subject, he will have power to establish such
a Council and to define the nature of the duties to be performed by it and
its organisation and procedure.
3. Federal Railway Authority—To be drafted later.
Xn. FUNDAMENTAL RIGHTS
1. The Constitution will incorporate the fundamental rights approved by
the Constituent Assembly on the Report of the Advisory Committee appointed
under paragraph 20 of the Cabinet Mission’s Plan. The rights so approved
will be found in Schedule...*
•Vide Doc. No. 7(iii).
36
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550
FRAMING OF INDIA’S CONSTITUTION
Xin. NEW UNITS
1. The Parliament may admit into the Federation, or establish, new
constituent units, and, in doing so, may impose such terms and conditions
including the extent of representation in either chamber of Parliament,
as it thinks fit
2. Any territory which is surrendered to the Federation by any unit or
which is placed under the authority of, or acquired by. the Federation,
may be included by the Parliament among the directly administered areas
and the Federal organs of Government will have all powers and jurisdiction
therein in respect of all subjects and matters.
3. (1) The Constitution will lay down the principles and prescribe the
procedure for
(a) the admission into the Federation as constituent units of the Indian
States which have not already joined the Federation.
(b) increasing, diminishing or altering the boundaries of existing units
and directly administered areas, and
(c) the creation and admission into the Federation of fresh units of
the Federation by the grouping or regrouping of the whole or parts
of existing units, Indian States and directly administered
areas.
(2) No such alteration of boundaries or admission of new units may be
made except on the application or with the consent of the Legislatures of
the units. States or areas affected. The power to sanction every such
alteration or admission upon such terms and conditions as may be agreed
on, will vest in the Parliament of the Federation.
XIV. TRANSITIONAL PROVISIONS
To be drafted later.
XV. AMENDMENT OF THE CONSTITUTION
1. Amendments of the Constitution will be made by the Union Legislature
but no amendment will be deemed to have been approved by the Union
Legislature unless it has secured the support in each of the two chambers
of a majority of not less than two-thirds of its sanctioned strength. Further
such amendment will not have effect unless it is also approved by the
Legislatures of not less than two-thirds of the units.
XVI. COMMENCEMENT
1. The Constitution will prescribe the date or dates on which it, or parts
of it, will take effect but no such date may be later than the date on which
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NOTES BTC. TO THE UNION CONSTITUTION COMMITTBB
551
the repeal of the Government of India Act 1935 by the British Parliament
takes effect.
SCHEDULE I
Provinces of British India Indian States
Here specify the federating
Indian States.
Mad. as
Bombay
Central Provinces
Bihar
United Provinces
N. W. F. Province
Assam or Assam minus Sylhet
Bengal or West Bengal
Punjab or East Punjab
Sind
Baluchistan
SCHEDULB H
Directly Administered Areas
Delhi
Ajmer-Merwara
Panth Piploda
Coorg
Andaman and Nicobar Islands
Tribal Areas
SCHEDULE HI
Non-Federating Indian States
Here specify the non-federating Indian States.
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MINUTES OF THE MEETINGS OF THE UNION
CONSTITUTION COMMITTEE
May-August 1947
[The first meeting of the Union Constitution Committee took place
on May 5, 1947. The committee elected Nehru as its Chairman and
adjourned after transacting some preliminary business. After the an-
nouncement of the June 3 Plan, envisaging the partition of the country
[see Vol. 1, Document No. 85(i)] t the committee met again
from June 6 to June 11 and thereafter on June 30 to consider in detail
the principles to be recommended for the Union Constitution. The
discussion at these meetings mainly proceeded on the basis of B. N.
Rau’s questionnaire and memorandum [see Documents Nos. 13 and
15(ii)]. The committee also considered the report of the ad hoc
Committee on Supreme Court and of certain sub-committees appointed
by itself. It also held a number of joint meetings with the Provincial
Constitution Committee (see Document No. 19) and the Union Po¬
wers Committee (see Document No. 32) to discuss matters of com -
mon interest. The conclusions of the committee were embodied in the
memorandum annexed to its report of July 4, 1947 [see Document No.
18(i)]. Subsequently, at a meeting on July 12, the committee decided
to submit a supplementary report [see Document No. 18(H)] recom¬
mending some modifications in its original memorandum. The com¬
mittee met again on August 24 to consider an amendment adopted
by the Constituent Assembly to the clause relating to the composition
of the two Houses of the Federal Parliament which the committee
had recommended in its main report. The minutes of the various
meetings of the committee during May-August 1947 are reproduced
below.]
May 5, 1947
Present: (1) Pandit Jawaharlal Nehru; (2) Mr. Jagjivan Ram; (3) Sir N.
Gopalaswami Ayyangar; (4) Mr. K. M. Munshi; (5) Sardar K. M. Panikkar.
Pandit Jawaharlal Nehru was unanimously elected Chairman of the
committee.
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
553
2. It was decided that the next meeting should be held at 10 a.m. on
June* 2, 1947, and that the committee should sit from day to day till the
work was finished.
3. There was a general discussion as to the preliminary work to be dime
before the next meeting of the committee. It was decided that members
should, by the 15th of May, 1947, send in memoranda to the Secretariat
expressing their views on the principles of the Union Constitution and that
the Constitutional Adviser would thereafter circulate to the members a
self-contained memorandum in the form of a draft “White Paper” as a basis
of discussion. It was further suggested that two or three members of the
committee might meet in Delhi a couple of days before the next meeting
and informally discuss the memorandum.
4. To assist the members in preparing their memoranda, it was decided
to circulate to them the questionnaire! which was recently issued by the
Constitutional Adviser to the members of the Central and Provincial
Legislatures.
June 6, 1947
Present: (1) Pandit Jawaharlal Nehru ( Chairman ); (2) Dr. Rajendra
Prasad; (3) Maulana Abul Kalam Azad; (4) Pandit Govind Ballabh Pant;
(5) Mr. Jagjivan Ram; (6) Dr. B. R. Ambedkar; (7) Sir Alladi Krishnaswami
Ayyar; (8) Mr. K. M. Munshi; (9) Mr. K. T. Shah; (10) Dr. Syama Prasad
Mookerjee; (11) Sir V. T. Krishnamachari; (12) Sardar K. M. Panikkar;
(13) Sir N. Gopalaswami Ayyangar; (14) Mr. P. Govinda Menon.
The Chairman read out a note! addressed to him on behalf of the
Provincial Constitution Committee for the convening of a joint meeting at
3 pm. on 7-6-1947 to consider whether the Constitution of India would be
a Unitary Constitution or Federal Constitution.
It was agreed that there should be a joint meeting as proposed. In the
meanwhile, after discussion, the following tentative decisions were reached
by the committee:
(1) that the Constitution should be a Federal structure with a strong
Centre;
(2) that there should be three exhaustive legislative lists, viz-. Federal,
Provincial and Concurrent with residuary powers to the Centre; and
(3) that the States should be on a par with the Provinces as regards
the Federal Legislative list, subject to the consideration of any special
matter which may be raised when the lists have been fully
prepared.
♦This date was subsequently changed to June 6,1947.
tSee Document No. 13.
JSee Appendix to minutes of the joint meeting of the Union Constitution and
Provincial Constitution Committees held on June 7, 1947—Document No. 19.
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FRAMING OF INDIA’S CONSTITUTION
(4) It was accepted as a general principle that the executive authority
of the Federation should be coextensive with its legislative
authority.
The committee thereafter proceeded to consider the questionnairet circu¬
lated by the Constitutional Adviser.
Item 1: It was decided that the designation of the Head of the Indian
Union should be Rashtrapati —in English the President.
Discussion on item 2 regarding the manner in which the President should
be elected and the powers to be conferred on him was not concluded.
June 8, 1947
Present: (1) Pandit Jawaharlal Nehru (in the Chatr)\ (2) Dr. Rajendra
Prasad; (3) Pandit Govind Ballabh Pant; (4) Mr. Jagjivan Ram; (5) Dr. B. R.
Ambedkar; (6) Sir Alladi Krishnaswami Ayyar; (7) Sir N. Gopalaswami
Ayyangar; (8) Mr. K. M. Munshi; (9) Prof. K. T. Shah; (10) Dr. Syama
Prasad Mookerjee; (11) Sir V. T. Krishnamachari; (12) Sardar K. M.
Panikkar; (13) Mr. P. Govinda Menon.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy Secretary.
The committee resumed discussion on the items in the questionnaire t
circulated by the Constitutional Adviser.
Item 2: The following suggestions of Sir N. Gopalaswami Ayyangar were
accepted in principle, viz:
(1) That the President shall be elected by an electoral college consisting
of
(a) a fixed percentage of the total population of the Provinces and the
States within the Federation, and
(b) the members of the lower chamber of the Federal Legislature, and
(2) that the numbers referred to in (a) above shall be distributed among
the Provinces and States in proportion to the population of each and the
quota allotted to each unit shall be elected by the Legislature of the unit
or where there are two chambers of the Legislature of the unit, by the
lower chamber.
It was however decided that a small committee consisting of Sir N.
Gopalaswami Ayyangar, Dr. B. R. Ambedkar and Mr. K. M. Munshi be
appointed to examine the proposal further and to submit a report.
It was also accepted in principle that the President should be elected by
an absolute majority and it was decided that the committee referred to
above should also consider what was the most appropriate method of
reaching this result
tSec Document No. 13.
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
555
Item 3: It was decided that the term of office of the President should
be five years. It was also decided that the life of the Federal Legislature
should be four years.
Item 4: It was decided that the President should be eligible for re-
election once, that is to say. he could held - office for not more than two
terms, whether consecutive or otherwise.
Item 5: It was decided not to provide for the rotation of the office of
the President among the different communities in turn.
Item 6: It was agreed that there should be one Vice-President and that
he should be elected by both chambers of the Federal Legislature. It was
decided that the Vice-President should be die ex-officio President erf the
upper chamber of the Federal Legislature and that he should act as
President in the event of the death, resignation or removal of the President
for a period not exceeding six months, within which a new President should
be elected. It was further decided that the new President to be so elected
should hold office for five years.
Item 7: It was decided that the term of office of the Vice-President,
should be five years as in the case of the President.
Item 8: It was decided that the President should have the following
functions, viz.;
O') He should be the Commander-in-Chief of the Army, Navy and the
Air Force.
(ii) He should have the power to send back Bill to the Legislature for
reconsideration within a period of six months.
(rii) He should have the power to grant reprieves and pardons (except
in cases of impeachment for offences against the State) and to commute
sentences.
It was also decided that he should be liable to impeachment for
violation of the Constitution and should be removed from office on
such impeachment by the votes of not less than two-thirds of the
total membership of the House by which he was tried for such
impeachment.
It was further decided that the President’s power to dissolve the lower
chamber of the Federal Legislature should be exercised only on the advice
of the Ministers. He should not have the special responsibilities set out
in clause 15 of the Draft Constitution prepared by the Constitutional Adviser.*
The members of the Federal Public Service Commission should not be
appointed by the President in his discretion.
Item 9: It was decided that the Vice-President besides being the ex-
officio President of the upper chamber of the Federal Legislature, should
discharge the functions of the President if the President goes outside the
country or is prevented by illness from performing his functions.
*See B. N. Rau’s memorandum on the Union Constitution—Document No. 15(ii).
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FRAMING OF INDIA’S CONSTITUTION
Item 10: It was decided that the President should be liable to removal
by impeachment in the manner referred to under Item 8.
Item 11: This is covered by the decision under Item 6.
June 9, 1947
Present: (1) Pandit Jawaharlal Nehru (in the Chair); (2) Dr. Rajendra
Prasad; (3) Maulana Abul Kalam Azad; (4) Pandit Govind Ballabh Pant;
(5) Mr. Jagjivan Ram; (6) Dr. B. R. Ambedkar; (7) Sir Alladi Krishnaswami
Ayyar; (8) Mr. K. M. Munshi; (9) Prof. K. T. Shah; (10) Dr. Syama Prasad
Mookerjee; (11) Sir V. T. Krishnamachari; (12) Sardar K. M. Panikkar; (13)
Sr N. Gopalaswami Ayyangar; (14) Mr. P. Govinda Menon.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary.
The Chairman read out a note* addressed to him on behalf of the
Provincial Constitution Committee for the convening of a joint meeting at
3 p.m. on 10-6-1947 to consider the following points:
(1) Should the Governor of a Province proposing to issue an Ordinance
to prevent grave menace to peace and tranquillity consult the Union
President?
(2) The emoluments of Governors.
(3) The method of selecting High Court judges.
(4) The manner in which the Constitution may be amended.
It was agreed that there should be a joint meeting as proposed.
The committee resumed discussion on the remaining items in the ques¬
tionnaire? circulated by the Constitutional Adviser.
Item 12: It having been agreed already that the Union Executive should
be of the parliamentary type no further decision on this item is necessary.
Item 13: No special provisions are necessary for the securing of a stable
Executive.
Item 14: No provision should be made in the Constitution regarding the
composition of the Executive or the maximum number of Ministers.
Item IS: This item should stand over till the Minorities Committee has
submitted its report.
Items 16 & 17: There should be a provision on the following lines in the
Constitution as suggested by Sir Alladi Krishnaswami Ayyar and Sir
Gopalaswami Ayyangar in their joint note} viz.:
The President shall appoint the Prime Minister from among the members
of the Federal House of Representatives and in doing so will ordinarily
*See Appendix to the minutes of the joint meeting of the Union Constitution
and Provincial Constitution Committees held on June 10, 1947—Document No. 19.
tSee Document No. 13.
tSee Document No. 15(vi).
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
557
invite the person, who, in his judgment, is likely to command the largest
following in that House to accept the office. The other Ministers of the
Cabinet will be appointed by the President on the advice of the Prime
Minister.
Items 18 <£ 19: As the Executive will be of the parliamentary type, these
points do not arise.
Item 20: There should be two chambers—Council of States (in Hindus¬
tani, Rajya Sabha?) which would be the upper chamber, and the House of
the People (in Hindustani, Loka Sabha?) which would be the lower
chamber.
Item 21: The lower chamber should consist of not less than 400 and
not more than 500 members. Election to this House should be on the basis
of adult franchise. Constituencies should be delimited on the basis of
homogeneity, contiguity and population strengths; and this may in some
cases involve their ignoring the frontier between different units of the
Union.
The Upper House should consist of 250 members. The electoral units
should have a minimum population strength, say a million, and this would
necessarily involve the grouping of small States. A sub-committee consisting
of Dr. Ambedkar, Sir N. Gopalaswami Ayyangar, Mr. K. M. Munshi and
Sardar K. M. Panikkar should examine this question further and submit a
report. The upper diamber should also include representatives of certain
important functional interests such as sdentists and university teachers;
and for this purpose the President should be given authority to nominate
some 10 members in consultation with scientific bodies and universities.
There was a discussion on the point that units of the Federation must
have a minimum size and some minimum standards of administration. While
the force of this point was recognised by the committee, it was agreed that
it would be suflident for the present to group them for electoral purposes.
Item 22: This should be held over until the report of the Minorities
Committee was available.
Item 23: The dedsions already made would cover the points raised in
this item.
Item 24: It has already been dedded that the life of the lower chamber
should be 4 years.
The upper chamber would not be liable to dissolution, and one-third of its
members should go out every 2 years.
Item 25: Except in the case of Money Bills, both the chambers should
have equal powers of legislation and deadlocks should be resolved by
joint meetings of the two chambers.
Money Bills must originate in the lower chamber. The upper chamber
would have power to suggest amendments in Money Bills; the lower
chamber would consider them and thereafter whether they accepted the
amendments or not, the Bills would become law.
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framing of India’s constitution
It was decided by a majority of votes that in case of any difference of
opinion as to whether a Bill was a Money Bill or not, the decision of the
Speaker of the Lower House should be final.
Items 26 & 27: These two items should be considered at the joint
meeting at 3 p.m. cm 10-6-1947.
The committee considered it unnecessary to include in the Constitution
any provision relating to the setting up of a Union Economic Council as
suggested by Professor K. T. Shah. Such a Council, if considered necessary,
could be set up by an Act of the Union Legislature.
It was also decided that it was unnecessary to provide in the Constitution
Act for the establishment of a Federal Railway Authority or a Union
Defence Council.
June 11, 1947
Present: (1) Pandit Jawaharlal Nehru; (2) Pandit Govind Ballabh Pant;
(3) Mr. Jagjivan Ram; (4) Dr. B. R. Ambedkar; (5) Sir Alladi Krishnaswami
Ayyar; (6) Mr. K. M. Munshi; (7) Dr. Syama Prasad Mookerjee; (8) Sir V. T.
Krishnamachari; (9) Sardar K. M. Panikkar; (10) Sir N. Gopalaswami
Ayyangar; (11) Mr. P. Govinda Menon; (12) Mr. B. H. Zaidi;
In attendance: (1) Sir B. N. Rau. Constitutional Adviser; (2) Mr. H. V. R.
lengar. Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr, B. F. H. B.
Tyabji, Deputy Secretary.
As Pandit Jawaharlal Nehru, the Chairman of the committee, was not
present at the outset. Dr. B. R. Ambedkar was elected temporary Chairman.
The report of the sub-committee* appointed to consider the procedure
for election of the President of the Union and the composition of the
Council of States, was taken into consideration and the decisions reached by
them were agreed to, subject to the following modifications, viz.:
(1) in paragraph (i) of the decisions, after the words “Legislatures of
all units”, in line 2, the words “in addition to the members of both
Houses of the Union Legislature”, and after the words “scale of
representation”, in line 3, the words “of the units” shall be
inserted,
(2) in paragraph (3) of the said decisions, after the words and figure
“maximum of 20” the words “for a unit” shall be inserted, and
(3) another explanation defining a unit as a Province or Indian State
which returns in its own individual right members to the Council of
States or a group of States grouped together for the purpose of return¬
ing representatives to the Council of States shall be added at the end
of paragraph (3).
The committee next considered the provisions relating to the Supreme
*See Document No. 17(i) Minutes of tbe sub-committee meeting.
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MINUTES OF THE ONION CONSTITUTION COMMITTEE
559
Court which should be included in the Constitution and in this connection
considered the report of the ad hoc Committee on the Supreme Court" 1 .
It was agreed that there should be a Supreme Court and that the qualifi¬
cations of the judges of the Supreme Court should be as stated in paragraph
14 of the report.
As regards the method of appointment it was agreed that the President
should appoint the judges of the Supreme Court after consulting the Chief
Justice of the Supreme Court and such other judges of the Supreme Court
and of other High Courts as may be necessary for the purpose.
It was also agreed that the tenure of office of the judges of the Supreme
Court should be the same as that of the Federal Court judges under the
present Constitution Act, and that their age of retirement should be 65.
It was further decided that the salary and pensions erf the judges should
be determined by Acts of the Union Legislature and until they were so
determined they would be such as might be specified in a schedule to be
appended to the Constitution. It was further decided that there should be
no temporary judges in the Supreme Court and that a provision on the
lines of section 30 of the Canadian Supreme Court Act providing
for the appointment erf ad hoc judges should be included.
The committee accepted the recommendation contained in paragraph 16
of the report of the ad hoc committee.
At this stage the Chairman, Pandit Jawaharlal Nehru, came in and took
the Chair.
The committee agreed to the recommendations regarding jurisdiction and
powers of the Supreme Court contained in paragraphs 3 to 10 of the report
of the ad hoc committee.
The committee also agreed to the recommendations contained in para¬
graph 11 of the report with regard to the advisory jurisdiction of the
Supreme Court, but stated that it should be made clear that the expression
“full court” used in that paragraph should have a meaning similar to that
assigned to the expression “full Board” used in relation to the Privy
Council.
The committee also accepted the recommendations erf the ad hoc com¬
mittee contained in paragraph 12 of their report with regard to the ancillary
powers of the Supreme Court.
With regard to the constitution, and strength of the Supreme Court the
committee decided that there should be a provision on the lines of clause
50 of the draft of the Union Constitution prepared by the Constitutional
Advisert-
The committee decided that there should be an Auditor-General of India.
•For the report of the ad hoc committee see Appendix 1 to the Report of the
Union Constitution Committee, July 4, 1947—Document No. 18(i).
tSee Document No. 15(ii).
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FRAMING OF INDIA’S CONSTITUTION
who should be appointed by the President of the Union on the advice of
the Ministers and that provisions similar to those contained in the Government
of India Act, 1935, with respect to the Auditor-General of India should be
included in the Constitution.
The committee also decided that there should be a Federal Public
Service Commission, the members of which should be appointed by the
President on the advice of the Ministers and that the composition and
functions of the Commission should follow the lines of the corresponding
provisions in the Government of India Act, 1935.
The committee agreed that there should be provisions in the Constitution
on the lines of the existing Constituent Assembly Rules with regard to the
language to be used in the Union Parliament.
The committee decided that it was not necessary to include in the
Constitution provisions relating to International Relations on the lines of
clauses 1 to 5 of Part V of the Memorandum on the Union Constitution
prepared by the Constitutional Adviser.* The committee decided that
transitional provisions on the lines of clauses 1, 2 & 3 of Part IX of the
Memorandum on the Union Constitution prepared by the Constitutional
Adviser should be included in the Constitution. The committee also agreed
that provisions on the lines of clauses 5 & 6 of Part IX of the Memorandum
should be included in the Constitution.
The committee decided that the Chief Commissioners’ Provinces should
continue to be administered by the Centre as under the existing Constitution
Act as an interim measure, the question of any change in the system being
considered subsequently, and that all Centrally administered areas including
the Andamans and Nicobar Islands should be specifically mentioned in the
Constitution.
The committee also decided that there should be provision for the
creation of all-India Services whose recruitment and conditions of service
would be regulated by Acts of the Union Parliament.
It was decided that the committee should meet again on 29-6-19471 to
consider further the memorandum embodying the decisions reached by the
committee regarding the Union Constitution. In the meanwhile a draft
reportt would be prepared and circulated to members with a time limit for
comments;! and thereafter, copies would be sent to all members of the
Assembly. It was also decided that the Union Powers Committee should meet
on 30-6-1947. For this committee a note should be prepared by the
Secretariat, in consultation with expert officers of the Finance Department,
on the finances of the Federal Government and its financial relations with
the units.
•See Document No. 15(ii).
tThis date was subsequently changed to June 30, 1947.
JNot reproduced.
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
561
June 30, 1947
Present: (1) Pandit Jawaharlal Nehru (in the Chair); (2) Pandit Govind
Ballabh Pant; (3) Dr. B. R. Ambedkar; (4) Sir Alladi Krishnaswami Ayyar;
(5) Mr. K. M. Munshi; (6) Prof. K. T. Shah; (7) Sir V. T. Krishnamachari;
(8) Sardar K. M. Panikkar; (9) Sir N. Gopalaswami Ayyangar; (10) Mr. P.
Govinda Menon.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
lengar. Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy
Secretary.
The committee took up consideration of the Constitutional Adviser’s
memorandum embodying the provisional decisions of the Union Constitution
Committee, t
Preamble: The preamble was provisionally accepted pending the settle¬
ment of the Objectives Resolution of the Constituent Assembly.
PAST i
Clause 1: It was decided that the words “and shall embrace all the
territories included in India under the Government of India Act, 1935,”
should be omitted from this clause.
It was further decided that it should be made clear in this clause that
although the Federation would embrace only the territories specified in
Schedule I, it would have power to exercise jurisdiction over other territories
by treaty or agreement.
A suggestion was made that the word “State” in this clause should be
replaced by the word “Republic”, but the consideration of this was post¬
poned until the Objectives Resolution of the Constituent Assembly had
been setded.
Clause 2: Accepted.
Clause 3: It was decided that the words “or, where there is no Legisla¬
ture, the Ruler” should be omitted from this clause and the word “Province”,
wherever it occurs in this clause, should be replaced by the word “unit”.
Schedule I: It was decided that the words “and Berar” should be re¬
tained after the words ‘The Central Provinces” in Item I of this schedule.
PARTS II and m
The committee decided to postpone consideration of these two Parts
tFor the Constitutional Adviser’s memorandum of May 30, 1947 see Document
No. 15(ii). The revised memorandum embodying the provisional decisions of the
Union Constitution Committee is not reproduced: for arrangement of clauses see
Document No. 18(1) Annexure.
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FRAMING OF INDIA S CONSTITUTION
until after the Special Committees on Citizenship and Fundamental Rights
had submitted their report.
PART IV
Clause 1: It was decided by a majority of votes that the
words “the Legislative of the group, or, (if there is no such Legislature)”
should be omitted from the explanation to sub-clause (2) of this
clause.
Clause 2: The committee decided that paragraph (b) of the proviso to
sub-clause (1) of this clause should be re-drafted on the lines of the pro¬
visions for impeachment in the Irish Constitution and that sub-clause (2)
of this clause should be omitted.
The committee also suggested that the words “The President” in sub¬
clause (3) of this clause should be replaced by the words “A person who
holds or who has held office as President”.
Clause 3: It was decided that the word “reached” should be replaced by
the word “attained” and that it should be also made clear in this clause
that only citizens who are qualified for membership of the House of the
People should be eligible for election as President.
Clause 4: Accepted.
Clause 5: It was suggested that in place of “bye-elections” the words
“elections to fill casual vacancies” should be used.
Clause 6: It was decided that the proviso to sub-clause (1) of this clause
should be omitted.
It was further decided that a provision should be made to ensure the
holding of the elections within a period not exceeding six months from the
date of occurrence of the vacancy.
Clause 7: It was decided that the following modifications should be
made in this clause, namely:
(1) that in sub-clause (1), the words “be exercised by the President”
should be replaced by the words “be vested in the President” and the
words “but this shall not prevent the Federal Parliament from con¬
ferring functions upon any court, judge or officer or any local or
other authority” should be omitted; and
(2) that in sub-clause (2) (a) the words “but the exercise thereof may
be regulated by Federal law” should be omitted.
Clause 8: Accepted.
Clause 9: It was decided that the word “even” in this clause should
be deleted.
It was also decided that the words “save as taken away by Federal law”
in this clause should be replaced by the words “until otherwise provided
by appropriate Federal authority.”
Clause 10: Accepted.
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
563
Clause 11: It was decided that this clause should be omitted.
Clause 12: Accepted.
Clause 13: It was decided that sub-clause (2) of this clause should be
omitted.
Clause 14: Accepted.
Clause 15: It was decided that a new paragraph should be inserted after
paragraph (a) of sub-clause (1) of this clause to provide that the represen¬
tatives of the units in the Council of States would be elected by the Lower
Houses of the units.
It was also decided that in paragraph (b) of sub-clause (1) of this clause,
the words “representatives of the Provinces and of the Indian States or
groups of States, as the case may be, included in Schedule I” should be
replaced by the words “representatives of the people of the territories of the
Federation.”
It was further decided that in paragraph (c) of sub-clause (1) of this
clause, the words “subject to the jurisdiction” should be omitted.
The remaining sub-clauses of this clause were accepted without any change.
Clause 16: Accepted.
It was decided that there should be a provision for extending the life
of the Lower House of the Federal Parliament during emergencies for a
period not exceeding one year at a time and that it should be also provided
that the House would be dissolved and fresh elections would be held within
six months from the expiry erf the period of emergency.
Clause 17*: Discussion on this clause was not concluded when the
committee adjourned.
July 12, 1947
Present: Pandit Jawaharlal Nehru (in the Chair ); Dr. Rajendra Prasad;
Sir N. Gopalaswami Ayyangar; Dr. B. R. Ambedkar; Sir V. T. Krishna-
machari; Mr. K. M. Munshi; Sardar K. M. Panikkar; Mr. B. H. Zaidi;
Sir Alladi Krishnaswami Ayyar; Pandit Govind Ballabh Pant.
In attendance: Sir B. N. Rau, Constitutional Adviser; Mr. H. V. R.
Iengar, Secretary; Mr. S. N. Mukerjee, Joint Secretary and Draftsman;
Mr. B. F. H. B. Tyabji, Deputy Secretary.
The report of the sub-committeef appointed to consider the procedure
for the amendment of the Constitution was taken into consideration and
the following decisions were reached:
(1) An amendment of the Constitution in respect of any provision thereof
•Clause 17 and subsequent clauses of the memorandum were discussed at a joint
meeting of the Union Constitution Committee and the Union Powers Committee
held later on the same day—See Document No. 32.
tSee minutes of the sub-committee meeting—Document No. 17(ii).
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FRAMING OF INDIA’S CONSTITUTION
other than those relating to matters specified in paragraph (2) below
shall not be operative unless it is passed in each House of the Federal
Parliament by a majority of the total membership of that House and also
by a majority of not less than two-thirds of the members of that House
present and voting and that it will not be necessary for such amendment
to be ratified by the Legislatures of the units erf the Federation.
(2) An amendment of the Constitution in respect of any provision thereof
relating to any of the following matters, namely :
(a) changes in the Federal Legislative List,
(b) representation of units in the Federal Parliament, and
(c) powers of the Supreme court,
will not become operative unless it is passed in each House of the Federal
Parliament in the manner provided in paragraph (1) above and is also
ratified by the Legislatures of units representing a majority of the population
erf all the units of the Federation in which units representing at least one-third
of the population of the federated States are included.
(3) Part X of the memorandum 4 ' on the Indian Constitution should be
amended accordingly.
It was also decided that clause 3 erf Part 1 of the memorandum 41 on the
Indian Constitution should be modified by including a new sub-clause (e)
therein to enable the alteration of the name of any unit being made under
that clause by the Federal Parliament.
It was further decided that the Vice-President of the Federation should
be ex-officio member of the Council of States and that if an elected member
of the Council of States be elected as Vice-President, he should vacate his
seat as such member.
It was decided that a supplementary reportt should be presented to the
Constituent Assembly embodying the aforesaid decisions.
August 24, 1947 i
Present: (1) Dr. B. R. Ambedkar (in the Chair)', (2) Pandit Govind Bal-
labh Pant; (3) Shri Alladi Krishnaswami Ayyar; (4) Shri N. Gopalaswami
Ayyangar; (5) Prof. K. T. Shah; (6) Shri K. M. Munshi: (7) Sir V. T.
Krishnamachari; (8) Sardar K. M. Panikkar.
In attendance: (1) Mr. H. V. R. Iengar, Secretary; (2) Mr. S. N. Mukerjee,
Joint Secretary;
•See memorandum annexed to the Report of the Union Constitution Committee,
July 4,1947—Document No. 18(i).
tSee Document No. 18(ii).
{This meeting was convened to consider the amendment adopted by the Con-
stitutent Assembly to clause 14 of Chapter II of Part IV of the Union Constitution
Committee’s Report of July 4, 1947. For clause 14 as amended by the Assembly see
Document No. 18(iv).
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MINUTES OF THB UNION CONSTITUTION COMMITTEE
565
As Pandit Jawaharalal Nehru was not present. Dr. B. R. Ambedkar was
invited to take the Chair.
2. After discussion the committee came to the following conclusions:
I. HOUSE OF THB PBOPLB
A — Representation of Provinces
(1) Representation of the Governors’ Provinces in the House of the
People should be on the scale of one representative for every 6.25 lakhs
of the population of the Province.
(2) Representation of the Chief Commissioners’ Provinces in the House of
the People should be as follows:
Delhi. 1 representative
Ajmer-Merwara and
PanthPiploda V 1 representative
together J
Coorg. 1 representative
Besides this there should be one representative nominated by the Pre¬
sident for the Andaman and Nicobar Islands in the House of the People.
(3) Where the representation of Anglo-Indians in the House erf the Peo¬
ple is, in the opinion of the President, inadequate, it should be provided
in the Constitution that the President shall have power to nominate not
more than two representatives to represent the Anglo-Indian community.
(4) The allocation of seats in the House of the People other than seats
allotted to Indian States should be as shown in Part I of Appendix A to
these minutes.
B—Representation of States
(1) The representation in the House of the People of the Indian States
specified in Division I of Part II of Appendix A should be on the scale
of one representative for every 6.25 lakhs erf the population of the State.
(2) The States numbering 21 mentioned in Division II of the said part,
although their population is less than 6.25 lakhs, should have one repre¬
sentative each in the House of the People.
(3) The remaining States should be grouped under Division IH of Part
II of the said Appendix. Sir V. T. Krishnamachari promised to circulate
before the next meeting of the committee his proposals for such grouping.
n. COUNCIL OF STATES
A—Functioned Representation
There should be twenty-five members to be returned by functional
constituencies or panels in the Council of States. Mr. Munshi promised to cir¬
culate to the committee before their next meeting, his proposals with regard
to the number, nature and constitution of functional panels or
constituencies.
37
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FRAMING OF INDIA’S CONSTITUTION
B—Representation of Units
(1) The remaining members of the Council of States should be
representatives of units on the scale of one representative for every whole
million of the population of the unit up to five millions plus one representative
for every additional two millions of the population, subject to a total
maximum of twenty-five.
(2) There should be one representative erf the Chief Commissioner’s
Province of Delhi and one representative for all the remaining Centrally
administered areas to the Council of States.
(3) The allocation of seats in the Council of States to Provinces and
to Indian States or groups of States should be as shown in Parts 1 and II
of Appendix B to these minutes.
3. The committee was of opinion that it was not possible, (without
consulting the units) to make any recommendations with regard to the
delimitation of the constituencies to be formed in each unit for the purpose
of returning members to fill the seats allotted to each unit. The com¬
mittee, therefore, suggested that the Prime Ministers of the Provinces and
the Rulers of States should be requested to prepare schemes for the delimi¬
tation of constituencies in their units on the basis of the recommendations
of the committee made above and to furnish to the committee details of
the names and extent of constituencies to be so formed and the number
of seats to be allotted to each such constituency including seats, if any,
reserved for members of minority communities or tribes for which reser¬
vation of seats would be necessary in accordance with the decision of the
Constituent Assembly.
APPENDIX A
THE HOUSE OF THE PEOPLE
Part /—Representation of Provinces
Governors'
Provinces
Population
No. of seats (granting 1
seat to fractions of 50%
of the quota and above;
No. o r seats
(omitting
all fractions)
1. Madras
49,341,810
79
78
2. Bombay
20.849,840
33
33
3. West Bengal (a)
21,104,437
34
33
4. United Provinces
55,020.617
88
88
5. Bast Punjab (A)
12.409,925
20
20
6. Bihar
36,340,151
58
58
7. Central Provinces
including Berar
16,813.584
27
26
8. Assam (c)
7,471,531
12
11
9. Orissa
8,728,544
14
13
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
567
Chief Commissioners’.
Provinces
Population
~ No. of seats as allotted
by committee)
1.
Delhi
917,939
2
2
2.
Ajmer-Merwara and
Panth Piploda
583.693
1
1
(Ajmer-Merwara only)
3.
Coorg
168,726
1
1
4.
Andaman and Nicobar
Islands
33,768
1
1
(to be nominated by
the President)
Total
370
36?
[Note: (a) Does not include the population of Balurghat P.S. (92,016), a portion
of which has been transferred to India and the population of Daulatpur
P.S. (121,938).
(6) Does not include the population of the Kasur Tehsil (414.499), two-
thirds of which has been transferred to India.
(c) Includes the population of areas transferred from Sylhet to India.]
Part II—Representation of Indian States
Division I
Indian
States
Population
No. of seats
(granting 1
seat to frac¬
tions of 50%
of the quota
and above)
No. o r seats
(omitting all
fractions) .
1. Hyderabad
16,338,534
26
26
2. Mysore
7,329,140
12
H
3. Travancore
6,070,018
10
9
4. Kashmir
4,021 616
6
6
5. Gwalior
4,006.159
6
6
6. Jaipur
3,040.876
5
4
7. fiaroda
2.855,010
5
4
8. Jodhpur
2,555,904
4
4
9. Patiala
1,936.259
3
3
10. Udaipur
1,926,698
3
3
11. Rewa
1.820,445
3
2
12* Indore
1.513.966
2
2
13. Cochin
1,422,875
2
2
14. Bikaner
1,292.938
2
2
15. Kolhapur
1.092,046
2
1
Total
91
85
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FRAMING OF INDIA S CONSTITUTION
Division II'
Indian
States
.- • •
Population
No. o r seats
(as allotted
by
committee)
1.
Mayurbhaqj
990^977
1
z
Alwar
823,055
3.
Bhopal
■*
785.322
4.
Kotah
777,398
1
5.
Tehri-Garhwal
.
397,369
1
6.
BilaSpur
110,336
1
7.
Cutch
500,800
8.
Benares
451,428
9.
Rampur
477,042
1
10.
Puddukottai
438,348
11.
Cooch-Behar
640,842
1
12.
Bastar
633,888
1
13.
Patna
632,220
1
14.
Kalahandi
597,940
15.
Surguja
551,752
16.
Keoqjbar
529,786
1
17.
Junagadh
670,719
1
18.
Bhavnagar
618,429
1
19.
Nawanagar
504,016
20.
Tripura
512.010
1
21.
Manipur
512.069
Total 21
Division III
(Groups of States) Total 35
Total for States :
(a) 147 (if 1 teat is granted to fractions of 50% o~th<* quota and above).
(A) 141 if all fractions are omitted).
Grand Total : (a) 517 v if 1 s"at is -granted to fractions of 50 per Cent of the
quota and above).
(A) 506 (if all fractions are omitted).
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MINUTES OF THE UNION CONSTITUTION COMMITTEE
569
APPENDIX B
THE COUNCIL OP STATES
Part ^Representation of Protlnces
Governors’
Provinces
Population
No. of seats
(granting 1 seat to frac¬
tions of 50% of the
quota and above)
1. Madras
49,341,810
25
2. Bombay
20,849,840
13
3. West Bengal («)
21,104,437
13
4. United Provinces
55,020,617
25
3. East Punjab (6)
12,409,925
9
6. Bihar
36,340,151
21
7* Central Provinces in-
eluding Berar
16,813,584
11
8. Assam (c)
7,471,531
6
9. Orissa
8,728^44
7
Chief CommissionerP
No* of seats as allotted by
Prorinces
committee
U Delhi
917,939
1
la Other Chief Commis¬
sioners’ Provinces
786,187
1
Total
132
[Notes: (at Does not include th’ population of Balurghat P. S. (92,016), a portion of
which hat been transferred to India* and the population of Daulatpur P. S.
(121*938).
(b) Does not include the population of Kasur Tehsil (414,499),. two-thirds of
which has been transferred to India.
(c) Includes th e population of areas transferred from Sylhet to India.]
Port //—Representation of Indian States
Division I
Indian
States
Population
No* of seats
(granting 1 seat to
fractions of 50% of
the quota and above)
1. Hyderabad
16,338,534
11
2. Mysore
7,329,140
6
3. Travancore
6,070,018
6
4. Kashmir
4,021,616
4
5. Gwalior
4,006,159
4
6. Jaipur
3,040,876
3
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570
FRAMING OF INDIA S CONSTITUTION
Indian
States
Population
No. of seats
(granting 1 seat to frac¬
tions of 50% of the
quota and above)
7.
Baroda
2,835,OH>
.
3
8.
Jodhpur
2,555,904
3
9.
Patiala
1,936,259
2
10.
Udaipur
1,926.698
2
11.
Rewa
1,820,445
2
12.
Indore
1,513,966
2
13.
Cochin
1,422.875
1
14.
Bikaner
1,292,938
1
15.
Kolhapur
1,092,046
1
Total
51
Division II
(Croups of States)
Total
37
Total for States
88
Grand Total
820
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17
MINUTES OF THE MEETINGS OF SUB-COMMITTEES
APPOINTED BY THE UNION CONSTITUTION
COMMITTEE
June-July 1947
[During its discussions on June 8 and 9, 1947 1 the Union Constitution
Committee appointed two sub-committees — Sub-Committee 1 and Sub-
Committee II—which were respectively to consider and report on
(a) the procedure for the election of the President of the Union and
(b) the composition of the Council of States (sec Document No. 16).
Later , at the joint meeting of the Union Constitution Committee and
the Union Powers Committee on June 30 another sub-committee was
set up to 4 further examine 9 the procedure for the amendment of the
Constitution (see Document No. 32). Sub-Committee I consisted of
N. Gopalaswami Ayyangar, B. R. Ambedkar and K. M. Munshi, all
of whom were also members of Sub-Committee II and the Sub-Com¬
mittee on Amendment. In addition , Sub-Committee II included K. Af.
Panikkar; the Sub-Committee on Amendment had two additional
members — K. M. Panikkar and B. H. Zaidi. Sub-Committees I and
II met together on June 10, while the Sub-Committee on Amendment
met on July 11. The relevant minutes are reproduced below.]
(i) MINUTES OF THE MEETING OF SUB-COMMITTEE I AND
SUB-COMMITTEE II
June 10, 1947
Present : (1) Sir N. Gopalaswami Ayyangar; (2) Dr. B. R. Ambedkar;
(3) Mr. K. M. Munshi; (4) Sardar K. M. Panikkar.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
Iengar, Secretary; (3) Mr. B. F. H. B. Tyabji, Deputy Secretary.
After discussion the following decisions were reached:
(1) Electoral College for election of President shall consist of the mem¬
bers of the Lower House of the Legislatures of all units. In order to
secure uniformity in the scale of representation, it was agreed that the
votes of the several legislatures should be weighted according to the
population of the units concerned. Thus in a legislature where each legislator
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FRAMING OF INDIA’S CONSTITUTION
represents one lakh (100.000) of the population, his vote shall count as
equivalent to 100; and where the legislature is such that the legislator
represents 10,000 of the population, his vote shall count as equivalent to
10. i\e. one for each 1000 of the population.
Explanation. —A unit means a Province or Indian State which returns
in its own individual right members to the Federal Parliament. In Indian
States which are grouped together for the purpose of returning represen¬
tatives to the Council of States a ‘unit’ means the group so formed and the
‘legislature’ of the unit means the legislatures of all the States in that group.
(2) Method of election of President shall be by proportional represen¬
tation according to the principle of the single transferable vote.
(3) The composition of the Council of States: One representative for
every whole million of the population up to five million, plus one repre¬
sentative for every two additional millions of the population subject to
a total maximum of 20. On this basis, the probable representation of the
various units will work out as follows:
Madras
PROVINCES
20
Bombay
12
Bengal (W)
12
U.P.
20
Punjab (E)
9
Bihar
20
C. P.
10
Assam
7
Orissa
STATES
6
116
Hyderabad
10
Mysore
6
Travancorc
5
Baroda
3
Gwalior
4
Jaipur
3
Kashmir
4
Jodhpur
2
Udaipur
2
Patiala
2
Rewa
2
Cochin
1
Bikaner
1
45
For the croups of the remaining States whose population
individually does not amount to oce million 26
total 71
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MINUTES OF THE SUB-COMMITTEES
573
(n) MINUTES OF THE MEETING OF THE SUB-COMMITTEE ON
AMENDMENT OF THE CONSTITUTION
July 11, 1947
Present: (1) Sir N. Gopalaswami Ayyangar; (2) Mr. B. If. Zaidi;
(3) Dr. B. R. Ambedkar; (4) Shri K. M. Munshi; (5) Sardar K. M. Panikkar.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Shri S. N.
Mukerjee, Joint Secretary & Draftsman; (3) Shri Jugal Kish ore Khanna,
Deputy Secretary.
1. Dr. Ambedkar was unanimously elected Chairman of the committee.
2. After discussion the following decisions were reached—
(1) The ratification of the amendment to the Constitution should be
by a majority of the legislatures of each class of units, that is,
the Provinces, the Federated States and where States are grouped
together to form a unit, such groups of States.
(2) The explanation proposed in Part X of the memorandum* on
the Indian Constitution embodying the recommendations of the
Union Constitution Committee should be retained.
3. Mr. Khaitan’s lettert making certain suggestions regarding the rati¬
fication of the amendment of the Constitution by the units was read by
the Chairman before the committee.
•Sec memorandum annexed to the Report of the Union Constitution Committee.
July 4, 1947. Document No. 18(i).
tNot reproduced.
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
July 1947
[At the end of its deliberations on the principles of the Union Consti¬
tution (see Document No. 16 ), the Union Constitution Committee sub¬
mitted its Report to the President of the Assembly on July 4, 1947 .
The Report set out the recommendations of the committee in the
form of a 'Memorandum on the Indian Constitution* and also repro¬
duced, in an Appendix, the Report submitted by the ad hoc Commit¬
tee on the Supreme Court on May 21. In a supplementary report,
dated July 13, the committee recommended certain modifications in
some of the provisions of its memorandum of July 4. On July 18,
Nehru, the Chairman of the committee, circulated a statement indi¬
cating that the Preamble and the clauses relating to the first part of
Part I, Part II (relating to citizenship) and Part 111 (relating to funda¬
mental rights) would not be discussed. Moving consideration of the
Report of the committee in the Constituent Assembly on the 21st July
1947, Nehru reiterated this suggestion and proposed that the Preamble,
Part I, Part II and Part III need not be considered at that time and
that discussion might begin on Part IV. The House discussed Part
IV and the subsequent parts of the Report for eight days : most of the
clauses recommended by the committee were adopted, in some cases
with certain amendments. Consideration of the remaining clauses was
held over. The two Reports of the Union Constitution Committee,
Nehru*s statement of July 18 and the clauses of the Memorandum on
the Indian Constitution, as adopted by the Constituent Assembly are
reproduced below.]
(i) REPORT OF THE UNION CONSTITUTION COMMITTEE
July 4, 1947
From
Pandit Jawaharlal Nehru.
Chairman. Union Constitution Committee.
To
The President,
Constituent Assembly of India.
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
575
Sul
On behalf of the members of the committee appointed by the Honourable
the President in pursuance of the resolution of the Constituent Assembly
of the 30th April, 1947, to report on the principles of the Union Constitu¬
tion, I have the honour to submit the annexed memorandum which em¬
bodies the recommendations of the committee together with explanatory
notes where necessary.
I have etc.,
Jawaharlal Nehru
MEMORANDUM ON THE INDIAN CONSTITUTION
Preamble: We, the people of India, seeking to promote the common good, do
hereby, through our chosen representatives, enact, adopt and give to ourselves this
Constitution.
PART I
Federal Territory and Jurisdiction
1. Name and Territory of Federation: The Federation hereby established shall
be a sovereign independent Republic known as India.
Save as otherwise provided by or under this Constitution or any treaty or agree¬
ment, the territories included for the time being in Schedule I shall be subject to
the jurisdiction of the Federation.
[Note: The structure proposed to be established by this Constitution being federal
in character, the term Federation has been used.
“India” has been suggested for the name of the State as being the shortest and
the most comprehensive.
The words “save as otherwise provided by or under any treaty or agreement” are
necessary, because there may be Indian States which, though unfederated and there¬
fore not in the Schedule, may have ceded jurisdiction for certain special purposes by
some treaty or agreement]
2. Admission of New Territory: The Parliament of the Federation may from time
to time bv Act include new territories in Schedule I upon such terms as it thinks fit
[Cf. —Art IV. Section 3(1), of the Constitution of the United States of America
and Section 121 of the Australian Constitution. The power to admit new States is
vested in the Congress in the United States of America and in the Commonwealth
Parliament in Australia.
As a matter of nomenclature it may be explained that in this draft the Legislature
of the Federation is referred to as “Parliament”; unit Legislatures are referred to
as “Legislatures”. The Federal Parliament consists of the President and a National
Assembly comprising two Houses.]
3. Creation of new units and alteration of boundaries of units: The Parliament
of the Federation may by Act, with the consent of the Legislature of every Province
and the Legislature of every Indian State affected thereby :
(a) create a new unit;
(b) increase the area of any unit;
(c) diminish the area of any unit;
(d) alter the boundaries of any unit;
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FRAMING OF INDIA’S CONSTITUTION
and may with the like consent make such incidental and consequential provisions as
it may deem necessary or proper.
[Note : This corresponds to s. 290 of the Act of 1935, but is wider in that it
provides for the possibility of Indian State territory being included in a Province.]
Schedule I
TERRITORIES SUBJECT TO THE JURISDICTION OF THE FEDERATION
I. Governors' Provinces : Madras; Bombay; West Bengal; The United Provinces;
Bihar; East Punjab; The Central Provinces and Berar; Assam; Orissa.
II. Chief Commissioners' Provinces: Delhi; Ajmer-Merwara; Coorg; The
Andaman and Nicobar Islands; Panth Piploda.
III. Indian States: [Here enumerate the acceding or ratifying Indian States: (1)
Single States, (2) Groups of States.]
[The Governors’ Provinces and the Chief Commissioners’ Provinces specified in
the Schedule will be automatically within the jurisdiction of the Federation of India.
As regards Indian States, some procedure will have to be prescribed for determining
which of them are to be included in the schedule initially. Under the Act of 1935,
accession was to be evidenced by “Instruments of Accession” executed by the Rulers.
If it is considered undesirable to use this term or adopt this procedure, some kind
of ratification may have to be prescribed.
If any of the Provinces specified in the schedule should be partitioned before the
Constitution comes into operation, the schedule will have to be amended
accordingly.]
PART II
This Part is subject to the decision of the ad hoc committee on citizenship danse.
Citizenship
1. Citizenship: At the date of commencement of this Constitution :
every person domidled in the territories subject to the jurisdiction of the
Federation—
(a) who has been ordinarily resident in those territories for not less than five
years immediately preceding that date, or
(b) who, or whose parents, or either of whose parents, was or were born in
India,
shall be a citizen of the Federation :
Provided that any such person being a citizen of any other State may, in accordance
with Federal law, elect not to accept the dtizenship hereby conferred.
Explanation .—For the purposes of this clause—
“Domicile” has the same meaning as in the Indian Succession Act, 1925.
2. After the commencement of this Constitution—
(a) every person who is bora in the territories subject to the jurisdiction of the
Federation;
(b) every person who is naturalised in accordance with Federal law; and
(c) every person, dther of whose parents was, at the time of such person’s birth,
a citizen of the Federation, shall be a citizen of the Federation.
3. Further provisions governing the acquisition and termination of Federal dtizen¬
ship may be made by Federal law.
Explanation .—In this Constitution, unless the context otherwise requires, “Federal
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
577
law” indudes any existing Indian law as in force within the territories subject to the
jurisdiction of the Federation.
f Note: The provisions regarding dtizenship will doubtless rouse keen controversy.
The oresent draft is merdv meant as a basis for discussion. Cf. Artide 3 of the
Constitution of the Irish Free State, 1922, which runs—
Every person, without distinction of sex, domiciled in the area of the jurisdiction
of the Irish Free State at the time of the coming into operation of this Cons¬
titution, who was bom in Ireland or either of whose parents was bora in
Ireland, or who has been ordinarily resident in the area of the jurisdiction of
the Irish Free State for not less than seven years, is a citizen of the Irish Free
State and shall, within the limits of the jurisdiction of the Irish Free State,
enjoy the privileges and be subject to the obligations of such citizenship:
Provided that any such person being a citizen of another State may elect not to
accept the dtizenship hereby conferred; and the conditions governing the future
acquisition and termination of dtizenship in the Irish Free State shall be
determined by law.
Clause 1 is on the lines of the above provision; except that a period of five years
has been substituted for seven years in accordance with s. 3(1) (c) of the Indian
Naturalisation Act, VII of 1926.
The clause has had to be drafted with due regard to the probability that the
Federation will not initially exerdse jurisdiction over the whole of India.
A person bom in India and domiciled in Bombay, who happens to be resident in
London at the commencement of the new Constitution, will be a citizen of the
Federation under this clause; but not one domidled in Sind or Baluchistan, if the
Federation does not initially exercise jurisdiction there. It is, however, open to any
person to acquire a new domidle by taking up his fixed habitation in another area
before the Constitution comes into operation.
Under the Indian Succession Act, 1925, every person has a “domicile of origin",
which prevails until he acquires a new domicile. Briefly, his domidle of origin in
the country in which at the time of his birth his father was domiciled, and he can
acquire a new domicile by taking up his fixed habitation in another country. There
is also a provision in the Act enabling any person to acquire a domicile in British
India by making and depositing in some office in British India appointed in this
behalf by the Provincial Government, a declaration in writing of his desire to
acquire such domidle; provided that he has been resident in British India for one
year preceding the date of the declaration. Generally speaking, wife’s domicile dur¬
ing her marriage follows the domicile of her husband. If any person who is at
present domiciled, say, in Hyderabad, wishes to acquire a domidle, say, in Delhi,
before the coming into operation of this Constitution, he can do so either by taking
up his fixed habitation in Delhi or by following the procedure prescribed in the
above provision of the Indian Succession Act, so that at the date of commencement
of the Constitution he will become domiciled “in the territories subject to the jurisdic¬
tion of the Federation."
Clauses 2 and 3 follow the provisions suggested by the ad hoc committee; clause 2
is not necessary, if we are content to leave the matter to Federal law under clause 3.
In this connection, there is much to be said in favour of the view of the Calcutta
Weekly Notes:
It is not possible to define exhaustively the conditions of nationality, whether by
birth or naturalization, by the Constitution. If certain conditions are laid down
by the Constitution, difficulties may arise regarding the interpretation of future
legislation which may appear to be contrary to or to depart in any way from
them. For example, the draft of the nationality clause placed before the
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FRAMING OF INDIA’S CONSTITUTION
Constituent Assembly lays down that any person bom in the Union would be
a citizen of the Union. But what about a woman citizen of the Union marry¬
ing an alien national or about an alien woman marrying a Union national?
Would the Union Legislature have power to legislate in the first case that
the woman would lose her Union nationality or in the second case that she
would acquire Union nationality (such being the law of most of the countries)?
These are intriguing questions, but all these things have to be pondered before
a rigid clause is inserted in the Constitution itself. It would, in our opinion,
therefore, be better to specify who would be citizens of the Indian Union at
the date when the Constitution comes into force as in the Constitution of the
Irish Free State and leave the law regarding nationality to be provided for by
legislation by the Indian Union in accordance with the accepted principles of
Private International Law. (Calcutta Weekly Notes, Voi. LI, No. 27, May
26, 1947).
The same journal in two subsequent issues (Vol. LI, Nos. 28 and 29, June 2, and
June 9, 1947) has drawn attention to a host of other questions arising out of clause
2 and on the whole it may be better altogether to omit that clause, leaving the matter
at large to be regulated by Federal law under clause 3.]
part m
Fundamental Rights including directive principles of State policy
1. Fundamental Rights : [Here enumerate the fundamental rights and principles
of State policy as passed by the Constituent Assembly.]
PART IV
Chapter l
The Federal Executive
1. Head of the Federation : (1) The Head of the Federation shall be the President
(Rashtrapati) to be elected as provided below:
(2) The election shall be by an electoral college consisting of—
(а) the members of both Houses of Parliament of the Federation, and
(б) the members of the Legislatures of all the units or, where a Legislature is
bicameral, the members of the Lower House thereof.
In order to secure uniformity in the scale of representation of the units, the votes
of the unit Legislatures shall be weighted in proportion to the population of the units
concerned.
Explanation. —A unit means a Province or Indian State which returns in its own
individual right members to the Federal Parliament In Indian States which are
grouped together for the purpose of returning representatives to the Council of States,
a unit means the group so formed and the Legislature of the unit means the
Legislatures of all the States in that group.
(3) The election of the President shall be by secret ballot and on the system of
proportional representation by means of the single transferable vote.
(4) Subject to the above provisions, elections for the office of President shall be
regulated by Act of the Federal Parliament
[Note: The provision about weighting of the votes according to the population of
the units is necessary to prevent the swamping of the votes of a large unit by
those of a much smaller unit which may happen to have a relatively large
legislature. The mode of weighting may be illustrated thus. In a legislature
where each legislator represents 1 lakh (1,00,000) of the population, his vote
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
579
shall count as equivalent to 100, that is, 1 for each 1,000 of the population;
and where the legislature is such that the legislator represents 10,000 of the
population, his vote shall count as equivalent to 10 on the same
scale.]
2. Term of office of President: (1) The President shall hold office for five
years :
Provided that—
(a) a President may, by resignation under his hand addressed to the Chairman
of the Council of States and the Speaker of the House of the People, resign his
office;
(b) a President may, for violation of the Constitution, be removed from office by
impeachment in the manner provided in sub-clause (2).
(2) (a) When a President is to be impeached for violation of the Constitution, the
charge shall be preferred by either House of the Federal Parliament; but no proposal
to prefer such charge shall be adopted by that House except upon a resolution of the
House supported by not less than two-thirds of the total membership of the
House.
(b) When a charge has been so preferred by either House of the Federal Parliament,
the other House shall investigate the charge or cause the charge to be investigated
and the President shall have the right to appear and to be represented at such
investigation.
(c) If as a result of the investigation a resolution is passed supported by not less
than two-thirds of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred against
the President has been sustained, the resolution shall have the effect of removing the
President from his office as from the date of the resolution.
(3) A person who holds, or who has held, office as President shall be eligible for
re-election once, but only once.
[Note: Sub-clauses (lXb) and (2) follow article 12(10) of the Irish Constitution;
sub-clause (3) is also taken from the Irish Constitution.]
3. Age qualification : Every citizen of the Federation who has completed the age
of thirty-five years and is qualified for election as a member of the House of the
People, shall be eligible for election as President
f Note: This follows article II, section 1(5), of the Constitution of the U. S. A. and
article 12(4) of the Irish Constitution.]
4. Conditions of Presidents office: (1) The President shall not be a member of
either House of the Federal Parliament and if a member of either House be elected
President he shall be deemed to have vacated his seat in that House.
(2) The President shall not hold any other office or position of emolument
(3) The President shall have an official residence and shall receive such emoluments
and allowances as may be determined by Act of the Federal Parliament and, until
then, such as are prescribed in Schedule...
(4) The emoluments and allowances of the President shall not be diminished
during his term of office.
[Note: These follow the provisions of articles 12(6) and 12(11) of (he Irish
Constitution.]
5. Casual vacancies and procedure at elections: Appropriate provision should be
made for elections to fill casual vacancies, the detailed procedure for all
elections, whether casual or not, being left to be regulated by Act of the Federal
Parliament:
Provided that—
(a) an election to fill a casual vacancy shall be held as soon as possible after.
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framing of India’s constitution
and in no case later than six months from, the date of occurrence of the
vacancy; and
(b) the person elected as President at an election to fill a casual vacancy shall be
entitled to hold office for the full term of five years.
6. Vice-President: (1) In the event of the absence of the President or of his death,
resignation, removal from office, or incapacity or failure to exercise and perform the
powers and functions of his office or at any time at which the office of the President
may be vacant, his functions shall be discharged by the Vice-President pending the
resumption by the President of his duties or the election of a new President, as the
case may be.
(2) The Vice-President shall be elected by both Houses of the Federal Parliament
in joint session by secret ballot on the system of proportional representation by
means of the single transferable vote and shall be ex-officio Chairman of the Council
of States.
(3) The Vice-President shall hold office for five years.
7. Functions of the President: (1) Subject to the provisions of this Constitution,
the executive authority of the Federation shall be vested in the President
(2) Without prejudice to the generality of the foregoing provision—
(a) the supreme command of the Defence Forces of the Federation shall be
vested in the President;
(b) the right of pardon and the power to commute or to remit punishment im¬
posed by any court exercising criminal jurisdiction shall be vested in the
President, but such power of commutation or remission may also be conferred
by law on other authorities .
r Note: The underlined words in sub-clause 2(b) are necessary because of the
provisions of the Criminal Procedure Code which, in this respect, will probably
continue to be in force even after the commencement of the new Constitution.
Similar limiting words occur in the Irish Constitution also.]
8. Extent of executive authority of the Federation: Subject to the provisions of
this Constitution, the executive authority of the Federation shall extend to the matters
with respect to which the Federal Parliament has power to make laws and to any
other matters with respect to which authority has been conferred on the Federation
by any treaty or agreement, and shall be exercised either through its own agency or
through the units.
9. The executive authority of the Ruler of a federated State shall continue to
be exercisable in that State with respect to federal subjects until otherwise provided
by the appropriate federal authority.
[Note: Like the corresponding provision in section 8(2) of the Act of 1935, this
clause gives the Rulers of Indian States, who have acceded to the Federation,
concurrent executive power even in federal subjects until otherwise provided
by federal authority. (In this respect, the position of the Provincial units is
rather different: these have no executive power in respect of federal subjects
save as given by federal law.) Such a clause is necessary, for, otherwise, all
statutory powers in respect of federal subjects will come to an end in the
acceding States upon the commencement of this Constitution.]
10. Council of Ministers: There shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President in the exercise of his
functions.
11. Advocate-General for the Federation: The President shall appoint a person,
being one qualified to be appointed a judge of the Supreme Court, to be Advocate-
General for the Federation, to give advice to the Federal Government upon legal
matters that may be referred to him.
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581
12. Conduct of business of the Federal Government : All executive action of the
Federal Government shall be expressed to be taken in the name of the President.
Chapter II
The Federal Parliament
13. Constitution of the Federal Parliament: The legislative power of the Federa¬
tion shall be vested in the Parliament of the Federation which shall consist of the
President and the National Assembly, comprising two Houses—the Council of States
and the House of the People.
14. (1) The Council of States shall consist of—
(i) not more than 10 members nominated by the President in consultation with
universities and scientific bodies;
(ii) representatives of the units on the scale of 1 representative for every whole
million of the population of the unit up to 5 millions plus 1 representative for
every additional 2 millions of the population, subject to a total maximum of
20 .
Explanation .—(a) A unit means a Province or Indian State which returns in its own
individual right members to the Federal Parliament In Indian States which are
grouped together for the purpose of returning representatives to the Council of States,
a unit means the group so formed.
(b) The representatives of each unit in the Council of States shall be elected by
the members of the Lower House of the Legislature of such unit
(c) The House of the People shall consist of representatives of the people of the
territories of the Federation in the proportion of not less than 1 representative for
every million of the population and not more than 1 representative for every 750,000
of the population.
(d) The ratio between the number of members to be elected at any time for each
constituency and the population of that constituency, as ascertained at the last
preceding census, shall, as far as practicable, be the same throughout the territories of
the Federation.
(2) The said representatives shall be chosen in accordance with the provisions in
that behalf contained in Schedule... :
Provided that the elections to the House of the People shall be on the basis of
adult suffrage.
(3) Upon the completion of each decennial census, the representation of the
several Provinces and Indian States or groups of Indian States in the two Houses
shall be readjusted by such authority, in such manner and from such time as the
Federal Parliament may by Act determine.
(4) The Council of States shall be a permanent body not subject to dissolution;
but, as near as may be, one-third of the members thereof shall retire in every second
year in accordance with the provisions in that behalf contained in Schedule...
(5) The House of the People, unless sooner dissolved, shall continue for four
years from the date appointed for its first meeting and no longer, and the expiration
of the said period of four years shall operate as a dissolution of the House:
Provided that the said period may, during an emergency, be extended by the
President for a period not exceeding one year at a time and not exceeding in any
case beyond the period of six months from the expiry of the period of the emergency.
[Note: Taking into account only the “willing” Provinces, this clause gives the
Council of States a maximum strength of about 200 members and the House
of the People a maximum strength of between 300 and 400 members. The
following tabular statement will serve to give a general picture of the com¬
position of the Upper House under the above scheme. (The composition of
the Lower House will be on a purely population basis.)
38
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FRAMING OF INDIA S CONSTITUTION
Council of States
provinces
Madras 20
Bombay 12
Bengal (W) 12
U. P. 20
Punjab (B) 9
Bihar 20
C. P. 10
Assam 7
Orissa 6
total 116
STATES
Hyderabad 10
Mysoro 6
TVavanoore 5
Baroda 3
Gwalior 4
Jaipur 3
Kashmir 4
Jodhpur 2
Udaipur 2
Patiala 2
Rewa 2
Cochin 1
Bikaner 1
Kolhapur 1
Indore 1
total 47
For the groups of the remaining
States whose population indi¬
vidually does not amount to
one million 24
TOTAL 71]
15. There should be the usual provisions for the summoning, prorogation and
dissolution of Parliament, for regulating the relations between the two Houses, the
mode of voting, privileges of members, disqualification for membership. Parliamentary
procedure, including procedure in financial matters. In particular. Money Bills must
originate in the Lower House. The Upper House should have power to suggest
amendments in Money Bills; the Lower House would consider them and thereafter,
whether they accept the amendments or not, the Bill as amended (where the amend¬
ments are accepted) or in its original form (where the amendments are not accepted)
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shall be presented to the President for assent and, upon his assent, shall become law.
If there is any difference of opinion as to whether a Bill is a Money Bill or not, the
decision of the Speaker of the House of the People should be final. Except in the
case of Money Bills, both the Houses shall have equal powers of legislation; and
deadlocks should be resolved by joint meetings of the two Houses. The President
shall have the power of returning Bills which have been passed by the National
Assembly for reconsideration within a period of six months.
16. Language; In the Federal Parliament, business shall be transacted in Hindus¬
tani (Hindi or Urdu) or English, provided that the Chairman or the Speaker, as the
case may be, may permit any member who cannot adequately express himself in
either language, to address the House in his mother tongue. The Chairman or the
Speaker, as the case may be, shall make arrangements for giving the House, whenever
he thinks fit, a summary of the speech in a language other than that used by the
member and such summary shall be included in the record of the proceedings of
the House.
[Note: This follows the corresponding provision in the Constituent Assembly
Rules.]
Chapter III
Legislative Powers of the President
17. Power of President to promulgate ordinances during recess of Parliament:
(1) If at any time when the Federal Parliament is not in session, the President is satis¬
fied that circumstances exist when render it necessary for him to take immediate
action, he may promulgate such ordinances as the circumstances appear to him to
require.
(2) An Ordinance promulgated under this section shall have the same force and
effect as an Act of the Federal Parliament assented to by the President, but every
such Ordinance—
(a) shall be laid before the Federal Parliament and shall cease to operate at
the expiration of six weeks from the reassembly of the Federal Parliament,
or, if before the expiration of that period resolutions disapproving it are passed
by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President
(3) If and so far as an Ordinance under this section makes any provision which
the Federal Parliament would not under this Constitution be competent to enact, it
shall be void.
[Note: The Ordinance-making power has been the subject of great criticism under
the present Constitution. It must however be pointed out that circumstances
may exist where the immediate promulgation of a law is absolutely necessary
and there is no time in which to summon the Federal Parliament In 1925,
Lord Reading found it necessary to make an ordinance suspending the cotton
excise duty when such action was immediately and imperatively required in
the interests of the country. A democratically elected President who has
moreover to act on the advice of Ministers responsible to Parliament, is not
at all likely to abuse any Ordinance-making power with which he may be
invested. Hence the proposed provision.]
Chapter IV
The Federal Judicature
18. Supreme Court: There shall be a Supreme Court with the constitution, powers
and jurisdiction recommended by the ad hoc Committee on the Union Judiciary,
except that a judge of the Supreme Court shall be appointed by the President after
consulting the Chief Justice and such other judges of the Supreme Court as also such
judges of the High Courts as may be necessary for the purpose.
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[Note: The ad hoc Committee* on the Supreme Court has observed that it will
not be expedient to leave the power of appointing judges of the Supreme
Court to the unfettered discretion of the President of the Federation. They
have suggested two alternatives, both of which involve the setting up of a
special panel of eleven members. According to one alternative, the President,
in consultation with the Chief Justice, is to nominate a person for appointment
as puisne judge and the nomination has to be confirmed by at least seven
members of the panel. According to the other alternative, the panel should
recommend three names, out of which the President, in consultation with the
Chief Justice, is to select one for the appointment The provision suggested in
the above clause follows the decision of the Union Constitution Committee.]
Chapter V
Auditor-General of the Federation
19. Auditor-General: There shall be an Auditor-General of the Federation who
shall be appointed by the President and shall only be removed from office in like
manner and on the like grounds as a judge of the Supreme Court
20. Functions of Auditor-General: The duties and powers of the Auditor-General
shall follow the lines of the corresponding provisions in the Act of 1935.
Chapter VI
Services
21. Public Service Commission: There shall be a Public Service Commission for
the Federation whose composition and functions shall follow the lines of the corres¬
ponding provisions in the Act of 1935, except that the appointment of the Chairman
and the members of the Commission shall be made by the President on the advice
of his Ministers.
22. Provision should be made for the creation of all-India services whose
recruitment and conditions of service will be regulated by federal law.
Chapter VII
Elections
23. Elections to the Federal Parliament: Subject to the provisions of this Con¬
stitution, the Federal Parliament may, from time to time, make provision with respect
to all matters relating to or connected with elections to either House of the Federal
Legislature including the delimitation of constituencies.
24. Superintendence , direction and control of elections: The superintendence,
direction and control of all elections, whether Federal or Provincial, held under this
Constitution, including the appointment or election tribunals for decision of doubts
and disputes arising out of or in connection with such elections, shall be vested in
a Commission to be appointed by the President
PART V
Distribution of Legislative Powers between the Federation and the Units
The provisions to be inserted under this head will depend upon the decisions that
may be taken upon the Report of the Union Powers Committee. The Union Con¬
stitution Committee has, however, decided that—
(1) the Constitution should be a federal structure with a strong Centre;
(2) there should be three exhaustive legislative lists, viz-. Federal, Provincial and
Concurrent, with residuary powers to the Centre;
(3) the States should be on a par with the Provinces as regards the Federal
Legislative List subject to the consideration of any special matter which may
be raised when the lists have been fully prepared.
♦For Committee’s Report see Appendix.
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PART VI
Administrative relations between the Federation and the Units
1. The Federal Parliament in legislating for an exclusively federal subject may
devolve upon the Government of a unit, whether a Province, an Indian State or other
area, or upon any officer of that Government, the exercise on behalf of the Federal
Government of any functions in relation to that subject
2. (1) It will be the dutv of the Government of a unit so to exercise its executive
power and authority in so far as it is necessary and applicable for the purpose as to
secure that due effect is given within the unit to every Act of the Federal Parliament
which applies to that unit; and the authority of the Federal Government will extend
to the giving of directions to a unit Government to that end.
(2) The authority of the Federal Government will also extend to the giving of
directions to unit Governments as to the manner in which the latter’s executive
power and authority should be exercised in relation to any matter which affects the
administration of a federal subject
£ Note: Cf. sections 122, 124 and 126 of the Government of India Act, 1935.]
part vn
Finance and Borrowing Powers
1. Revenues derived from sources in respect of which the Federal Parliament has
exclusive power to make laws will be allocated as federal revenues, but in the cases
specified in the next succeeding paragraph the Federation will be empowered or
required to make assignments to units from federal revenues.
2. Provision should be made for the levy and, if necessary, distribution of the
following taxes, viz., customs, federal excises, export duties, death duties and taxes
on income other than agricultural income and taxes on companies.
3. The Federal Government will have power to make subventions or grants out
of federal revenues for any purpose, notwithstanding that the purpose is not one
with respect to which the Federal Parliament may make laws.
4. The Federal Government will have power to borrow for any of the purposes
of the Federation upon the security of federal revenues subject to such limitations
and conditions as may be fixed by federal law.
5. The Federal Government will have power to grant a loan to, or guarantee a
loan by, any unit of the Federation on such terms and under such conditions as it
may prescribe.
[Note: Cf, sections 136 to 140, 162 and 163(2) of the Government of India Act,
1935.]
PART vm
Directly Administered Areas
1. The Chief Commissioners’ Provinces should continue to be administered by the
Centre as under the Government of India Act, 1935, as an interim measure, the
question of any change in the system being considered subsequently; and all centrally
administered areas including the Andamans and the Nicobar Islands should be
specifically mentioned in the Constitution.
2. Appropriate provision should be made in the Constitution for the administration
of tribal areas.
[Note: The provision to be made regarding tribal areas should incorporate' the
scheme for the administration of such areas as approved by the Constituent
Assembly on the Report of the Advisory Committee.]
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PART K
Miscellaneous
The provisions for the protection of minorities as approved by the Constituent
Assembly on the Report of the Advisory Committee should be incorporated in the
Constitution.
past x
Amendment of the Constitution
An amendment to the Constitution may be initiated in either House of the
Federal Parliament and when the proposed amendment is passed in each House by
a majority of not less than two-thirds of the members of that House present and
voting and is ratified by the Legislatures of not less than one-half of the units of the
Federation, it shall be presented to the President for his assent; and upon such assent
being given, the amendment shall come into operation.
Explanation .—“Unit” in this clause has the same meaning as in clause 14 of
Part IV. Where a unit consists of a group of States, a proposed amendment shall
be deemed to be ratified by the Legislature of the unit if it is ratified by the majority
of the Legislatures of the States in the group.
PART XI
Transitional Provisions
1. The Government of the Federation shall be the successor to the Government
of India established under the Government of India Act, 1935, as regards all pro¬
perty, assets, rights and liabilities.
[Note: If before the commencement of this Constitution, two successor Governments
should be set up in India, this clause may have to be amended, inasmuch as
there may be a division of assets and liabilities.]
2. (1) Subject to this Constitution, the laws in force in the territories of the Federa¬
tion immediately before the commencement of the Constitution shall continue to be
in force therein until altered, or repealed, or amended by a competent legislature or
other competent authority.
(2) The President may by order provide that as from a specified date, any law
in force in the Provinces shall, until repealed or amended by competent authority,
have effect subject to such adaptations and modifications as appear to him to be
necessary or expedient for bringing the provisions of that law into accord with the
provisions of this Constitution.
3. Until the Supreme Court is duly constituted under this Constitution, the
Federal Court shall be deemed to be the Supreme Court and shall exercise all the
functions of the Supreme Court:
Provided that all cases pending before the Federal Court and the Judicial Com¬
mittee of the Privy Council at the date of the commencement of this Constitution may
be disposed of as if this Constitution had not come into operation.
4. Excepting holders of the offices specified in Schedule..., every person who.
immediately before the date of the commencement of this Constitution, was in the
service of the Crown in India, including any judge of the Federal Court or of any
High Court, shall, on that date, be transferred to the appropriate service of the
Federation or the unit concerned and shall hold office by a tenure corresponding to
his previous tenure.
[Note: Under the next succeeding clause there will be a provisional President from
the commencement of the new Constitution, so that there will be no room for
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587
n Governor-General. Similarly, in the Provinces there will be no room for any
Governor appointed by His Majesty. The same may be true of the holders of
certain other offices. All such offices may be enumerated in a Schedule. The
proposed provision applies to persons holding offices other than those men¬
tioned in the Schedule. C/. article 77 of the transitory provisions of the
Constitution of the Irish Free State, 1922, reproduced below:
“Every existing officer of the Provisional Government at the date of the coming
into operation of this Constitution (not being an officer whose services have
been lent by the British Government to the Provisional Government) shall on
that date be transferred to and become an officer of the Irish Free State
(Saorstat Eireann), and shall hold office by a tenure corresponding to his
previous tenure.”]
5. (1) Until both the Houses of the National Assembly have been duly constituted
and summoned under this Constitution, the Constituent Assembly shall itself exercise
all the powers and discharge all the duties of both the Houses.
Explanation .—For the purposes of this sub-clause, the Constituent Assembly shall
not include any member representing territories not included in Schedule I.
(2) Such person as the Constituent Assembly shall have elected in this behalf
shall be the provisional President of the Federation until a President has been
elected as provided in Part IV of this Constitution.
(3) Such persons as shall have been appointed in this behalf by the provisional
President shall be the provisional Council of Ministers until Ministers are duly
appointed as provided in Part IV of this Constitution.
[Note: It is essential that on the date of the commencement of this Constitution
there should be a legislature and an executive ready to take over power. The
most practicable course is that the Constituent Assembly should itself be the
provisional legislature. The clause regarding the provisional executive is con¬
sequential. These provisions may however require modification after the
passing of the new Dominion Act amending the Government of India Act,
1935.]
6. As there may be unforeseen difficulties during the transitional period, there
should be a clause in the Constitution on the following lines :
The Federal Parliament may, notwithstanding anything contained in Part X, by
Act—
(a) direct that this Constitution, except the provisions of the said Part and of
this clause, shall, during such period, if any, as may be specified in the Act,
have effect subject to such adaptations and modifications as may be so specified;
(b) make such other provisions for the purpose of removing any such difficulties
as aforesaid as may be specified in the Act.
No Act shall be made under this clause after the expiration of three years from
the commencement of this Constitution.
[Note: The-removal-of-difficulties clause is now quite usual: see, for example,
section 310 of the Government of India Act, 1935. The period of three years
has been borrowed from article 51 of the Irish Constitution. This clause will
make the process of amendment comparatively easy during the first three years.]
APPENDIX
REPORT OF THE ad hoc COMMITTEE ON SUPREME COURT
May 21, 1947
We, the undersigned, members of the committee appointed to consider the
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constitution and powers of the Supreme Court, have the honour to submit this our
Report
2. We considered the question under the following heads :
I. Jurisdiction and powers of the Supreme Court.
II. Advisory jurisdiction of the court
III. Ancillary powers of the court
IV. Constitution and strength of the court
V. Qualifications and mode of appointment of judges.
VI. Tenure of office and conditions of service of judges.
/. Jurisdiction and Powers of the Supreme Court
3. A Supreme Court with jurisdiction to decide upon the constitutional validity
of Acts and laws can be regarded as a necessary implication of any federal scheme.
This jurisdiction need not however belong exclusively to the Supreme Court Even
under the existing Indian Constitution, the question of the validity of Acts and laws
is permitted to be raised in any court whenever that question arises in a litigation
before that court.
4. A Supreme Court for certain purposes being thus a necessity, we consider that
the court may well be given the following additional powers under the new Indian
Constitution:
(a) Exclusive jurisdiction in disputes between the Union and a unit or between one
unit and another.
5. The Supreme Court is the best available forum for the adjudication of such
disputes, and its jurisdiction should be exclusive.
(b) Jurisdiction with respect to Matters arising out of Treaties made by the Union.
6. The treaty-making power belongs to the Union as part of the subject of
‘Foreign Affairs’. It would therefore be appropriate to invest the Supreme Court of
the Union with jurisdiction to decide finally, though not necessarily in the first
instance, upon all matters arising out of treaties including extradition between the
Union and a foreign State. At this stage we do not deal with inter-unit extradition,
because this will depend upon the ultimate distribution of powers between the Union
and the units.
(c) Jurisdiction in respect of Such Other Matters within the Competence of the Union
as the Union Legislature may Prescribe.
7. If the Union Legislature is competent to legislate on a certain matter, it is
obviously competent to confer judicial power in respect of that matter on a tribunal
of its own choice; and if it chooses the Supreme Court for the purpose, the court
will have the jurisdiction so conferred.
(d) Jurisdiction for the Purpose of Enforcing the Fundamental Rights guaranteed by
the Constitution.
8. Clause 22 of the draft of the fundamental rights provides that the right to
move the Supreme Court by appropriate proceedings for the enforcement of funda¬
mental rights is guaranteed. We think, however, that it is undesirable to make the
jurisdiction of the Supreme Court in such matters exclusive. The citizen will
practically be denied these fundamental rights if, whenever they are violated, he is
compelled to seek the assistance of the Supreme Court as the only court from
which he can obtain redress. Where there is no other court with the necessary
jurisdiction, the Supreme Court should have it; where there is some other court with
the necessary jurisdiction, the Supreme Court should have appellate jurisdiction,
including powers of revision.
(e) General Appellate Jurisdiction similar to that now exercised by the Privy Council .
9. Under the new Constitution the jurisdiction of the Privy Council as the ultimate
appellate authority will disappear and it is obviously desirable that a similar jurisdiction
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should now be conferred on the Supreme Court. So far as the British Indian
units are concerned, this jurisdiction should be co-extensive with the present jurisdic¬
tion of the Privy Council. As regards the Indian State units, there are at least two
classes of cases where, in the interests of uniformity, it is clearly desirable that the
final decision should rest with the Supreme Court, namely—
(1) cases involving the interpretation of a law of the Union, and
(2) cases involving the interpretation of a law of a unit other than the State
concerned.
Sir B. L. Mitter suggests that such uniformity can be obtained either by invoking
the appellate authority of the Supreme Court or by a reference of the particular
issue to the Supreme Court Cases involving the constitutional validity of a law
of the Union or of any unit have already been dealt with; they will all necessarily
fall within the Supreme Court’s jurisdiction.
10. It will also, of course, be open to any Indian State unit to confer by special
agreement additional jurisdiction upon the Supreme Court in respect of such matters
as may be specified therein.
//. Advisory Jurisdiction of the Court
11. There has been considerable difference of opinion amongst jurists and political
thinkers as to the expediency of placing on the Supreme Court an obligation to
advise the Head of the State on difficult questions of law. In spite of arguments to
the contrary, it was considered expedient to confer advisory jurisdiction upon the
Federal Court under the existing Constitution by section 213 of the Act Having
given our best consideration to the arguments pros and cons, we feel that it will be
on the whole better to continue this jurisdiction even under the new Constitution.
It may be assumed that such jurisdiction is scarcely likely to be unnecessarily
invoked, and if, as we propose, the court is to have a strength of ten or eleven
judges, a pronouncement by a full court may well be regarded as authoritative
advice. This can be ensured by requiring that references to the Supreme Court for
advice shall be dealt with by a full court
III. Ancillary Powers of the Court
12. Power should be conferred upon the Supreme Court as under section 214 of
the Act of 1935 to make rules of procedure to regulate its work and provisions
similar to those contained in Order 45 of the Civil Procedure Code should be made
available so as to facilitate the preparation of the record in appeals to the Supreme
Court as well as the execution of its decrees. It does not seem to us necessary to
continue the restriction now placed on the Federal Court by section 209 of the Act
of 1935. If the Supreme Court takes the place of the Privy Council, it may well be
permitted to pronounce final judgments and final decrees in cases where this is
possible or to remit the matter for further inquiry to the courts from which the
appeal has been preferred where such further inquiry is considered necessary. Pro¬
vision must also be made on the lines of section 210 of the Act of 1935 giving
certain inherent powers to the Supreme Court
IV. Constitution and Strength of the Court
13. We think that the Supreme Court will require at least two Division Benches
and as we think that each Division Bench should consist of five judges, the court
will require ten judges in addition to the Chief Justice so as to provide for possible
absences or other unforeseen circumstances. Moreover, one of the judges may be
required to deal with miscellaneous matters incidental to appellate jurisdiction
(including revisional and referential jurisdictions).
V. Qualifications and Mode of appointment of Judges
14. The qualifications of the judges of the Supreme Court may be laid down on
terms very similar to those in the Act of 1935 as regards the judges of the Federal
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Court, the possibility being borne in mind (as in the Act of 1935) that judges of the
superior courts even from the States which may join the Union may be found fit
to occupy a seat in the Supreme Court. We do not think that it will be expedient
to leave the power of appointing judges of the Supreme Court to the unfettered dis¬
cretion of the President of the Union. We recommend that either of the following
methods may be adopted. One method is that the President should, in consultation
with the Chief Justice of the Supreme Court (so far as the appointment of puisne
judges is concerned), nominate a person whom he considers fit to be appointed to the
Supreme Court and the nomination should be confirmed by a majority of at least
7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of
the constituent units, some members of both the Houses of the Central Legislature
and some of the law officers of the Union. The other method is that the panel of
11 should recommend three names out of which the President, in consultation with
the Chief Justice, may select a judge for the appointment The same procedure
should be followed for the appointment of the Chief Justice, except, of course, that in
this case there will be no consultation with the Chief Justice. To ensure that the
panel will be both independent and command confidence, the panel should not be
an ad hoc body but must be one appointed for a term of years.
VI. Tenure of Office and Conditions of Service of Judges
15. The tenure of office of the judges of the Supreme Court will be the same as
that of Federal Court judges under the present Constitution Act and their age of
retirement also may be the same (65). Their salary and pensions may be provided
for by statutory rules. It is undesirable to have temporary judges in the highest
court in the land. Instead of having temporary judges, the system of having some
ad hoc judges out of a panel of Chief Justices or judges of the High Courts may be
adopted. In this connection we invite attention to the Canadian practice as embodied
in section 30 of the Canadian Supreme Court Act The section runs as follows :
30. Appointment of ad hoc judge: If at any time there should not be a quorum
of the judges of the Supreme Court available to hold or continue any session
of the Court, owing to a vacancy or vacancies, or to the absence through
illness or on leave or in the discharge of other duties assigned by statute or
order in council, or to the disqualification of a judge or judges, the Chief
Justice or, in his absence, the senior puisne judge may in writing request the
attendance at the sittings of the Court, as an ad hoc judge, for such period
as may be necessary, of a judge of the Exchequer Court, or, should the judges
of the said Court be absent from Ottawa or for any reason unable to sit, of
a judge of a provincial superior court to be designated in writing by the Chief
Justice or in his absence by any acting Chief Justice or the senior puisne
judge of such provincial court upon such request being made to him in writing.
• • •
4. Duties: It shall be the duty of the judge whose attendance has been so
requested or who has been so designated in priority to other duties of his
office, to attend the sittings of the Supreme Court at the time and for the
period for which his attendance shall be required, and while so attending he
shall possess the powers and privileges and shall discharge the duties of a
puisne judge of the Supreme Court
16. Not all the recommendations that we have made need find a place In the
Constitution Act The main features may be embodied in the Constitution Act and
detailed provisions in a separate Judiciary Act to be passed by the Union Legislature.
The form of procedure in the Supreme Court, e.g. t for the enforcement of fundamental
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591
rights may also be provided for in the Judiciary Act We may point out that the
prerogative writs of mandamus, prohibition and certiorari have been abolished in
England by a statute of 1938. Corresponding orders have been substituted and
the Supreme Court of Judicature has been empowered to make rules of court
prescribing the procedure in cases where such orders are sought [See sections 7—10
of the Administration of Justice (Miscellaneous Provisions) Act, 1938.]
17. We understand our terms of reference to relate only to the constitution and
powers of the Supreme Court We have, therefore, said nothing about the High
Courts of the units, although we have had to refer to them incidentally in some
of our suggestions relating to the Supreme Court.
S. Varadachariar.
A. Krishnaswami Ayyar.
B. L. Mitter.
K. M. Munshl
B. N. Rau.
(n)
SUPPLEMENTARY REPORT OF THE UNION CONSTITUTION
COMMITTEE
July 13. 1947
From
Pandit Jawaharlal Nehru.
Chairman, Union Constitution Committee.
To
The President.
Constituent Assembly of India.
Dear Sir,
On behalf of the members of the committee appointed by you in
pursuance of the resolution of the Constituent Assembly of the 30th April,
1947, I submitted a memorandum embodying the recommendations of the
committee.
2. The committee met again on the 12th July, 1947,* and decided on
certain modifications to be made in the said memorandum. I have the
honour to submit this supplementary report containing these recommendations.
3. In the opinion of the committee, clause 3 of the memorandum should
contain the following additional sub-clause to enable the Federal Parlia¬
ment to alter the name of any unit, namely, “(e) alter the name of any unit”.
4. The committee is of opinion that the following should be added to
sub-clause (2) of clause 6 of Chapter I of Part IV of the memorandum to
make it clear that if a member of the Council of States is elected as Vice-
President he shall vacate his seat as such member, namely, “and if a
member of the Federal Parliament is elected to be the Vice-President, he
shall vacate bis seat as such member”.
•See Document No. 16.
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FRAMING OF INDIA’S CONSTITUTION
5. The committee is further of the opinion that Part X of the memo¬
randum on the Indian Constitution should be replaced by the following:
“part x
Amendment of the Constitution
The amendment of the Constitution may be initiated in either House of
the Federal Parliament and when the proposed amendment is passed in
each House by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House
present and voting, it shall be presented to the President for his assent;
and upon such assent being given the amendment shall come into operation:
Provided that if such amendment is in respect of any provision of the
Constitution relating to all or any of the following matters, namely, (a) any
change in the federal legislative list, (b) representation of units in the
Federal Parliament, and (c) powers of the Supreme Court, it will also
require to be ratified by the Legislatures of units representing a majority of
the population of all the units of the Federation, in which units representing
at least one-third of the population of the federated States are included.
Explanation. —‘Unit’ in this clause has the same meaning as in dause
14 of Part IV. Where a unit consists of a group of States, a proposed
amendment shall be deemed to be ratified by the Legislature of the unit if
it is ratified by the majority of the Legislatures of the States in the
group.”
Jawaharlal Nehru,
Chairman.
(m) STATEMENT CIRCULATED BY JAWAHARLAL NEHRU ON THE
REPORT OF THE UNION CONSTITUTION COMMITTEB
July 18, 1947
This report lays down certain prindples which should govern the Consti¬
tution of the Union. It is not meant to be a draft of the Constitution.
After the principles have been decided, it is proposed to constitute a Draft¬
ing Committee which will produce a formal draft for the consideration of
die next session of the Constituent Assembly.
For the purpose of completeness, reference has been made in this draft to
certain matters which have been dealt with more fully at an earlier stage
by the Assembly. These matters will thus not be taken into consideration
at this stage.
Thus, the Preamble and the first paragraph of Part I have been dealt
with in the Objectives Resolution of the Constituent Assembly and the
final Constitution will have to incorporate parts of the Objectives Resolution
and the Preamble, etc. That Objectives Resolution will have to undergo
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
593
some modification on account of the political changes resulting from parti¬
tion, but the basic principles of the Objectives Resolution will remain.
That resolution has been referred to a sub-committee* for the purpose of
making the necessary changes.
The whole of Part II, which deals with citizenship, will not be taken up
at this stage. This matter has been considered by an ad hoc committee
and their final report has to be awaited.
Part III dealing with fundamental rights will also not be considered now,
because the Constituent Assembly has already come to decisions in regard
to fundamental rights.
All these matters will, of course, be incorporated in the final draft of the
constitution and will then come up before the Constituent Assembly.
Thus, the following clauses of the memorandum of the Union Constitu¬
tion Committee will stand over for the present and, therefore, no amend¬
ments need be moved at this stage to these clauses:
(1) Preamble,
(2) First paragraph of clause 1 of Part I,
(3) The whole of Part II which deals with citizenship.
(IV) MEMORANDUM ON THE INDIAN CONSTITUTION AS ADOPTED BY
THE CONSTITUENT ASSEMBLY
July 1947
PRBAMBLE
(This was not discussed.)
PART I
Federal Territory and Jurisdiction
(This Part was not discussed.)
part n
Citizenship
(This Part was not discussed.)
PART HI
Fundamental rights including directive principles of State policy
Fundamental Rights: [Here enumerate the fundamental rights and
principles of State policy as passed by the Constituent Assembly.]
*See Document No. 20.
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FART IV
Chapter l
The Federal Executive
1. Head of the Federation : (1) The Head of the Federation shall be
the President ( Rashtrapati ) to be elected as provided below.
(2) The election shall be by an electoral college consisting of—
(a) the members of both Houses of Parliament of the Federation, and
(b) the elected members of the Legislatures of all the units or, where
Legislature is bicameral, the elected members of the Lower House
thereof.
In order to secure uniformity in the scale of representation of the units,
the votes of the members of the unit Legislatures shall be weighted in
proportion to the population of the units concerned.
Explanation. —A unit means a Province or Indian State which returns in
its own individual right members to the Federal Parliament. In Indian
States which are grouped together for the purpose of returning repre¬
sentatives to the Council of States, a unit means the group so formed
and the Legislature of the unit means the Legislature of all States in
that group.
(3) The election of the President shall be by secret ballot and on the
system of proportional representations by means of the single transferable vote.
(4) Subject to the above provisions, elections for the office of President
shall be regulated by Act of the Federal Parliament.
f Note: The provisions about weighting of the votes according to the population
of the units is necessary to prevent the swamping of the votes of a large unit by
those of a much smaller unit which may happen to have relatively a large Legislature.
The mode of weighting may be illustrated thus. In a Legislature where each legis¬
lator represents 1 lakh (1,00,000) of the population, his vote shall count as equivalent
to 100, that is, 1 for each 1,000 of the population; and where the Legislature is such
that the legislator represents 10,000 of the population, his vote shall count as
equivalent to 10 on the same scale.]
2. Term of Office of President : (1) The President shall hold office for
five years:
Provided that—
(a) a President may by resignation under his hand addressed to the
Chairman of the Council of States and the Speaker of the House of
the People resign his office;
(b) a President may. for violation of the Constitution, be removed
from office by impeachment in the manner provided in sub-clause (2).
(2) (a) When a President is to be impeached for violation of the Consti¬
tution, the charge shall be preferred by either House of the Federal Parlia¬
ment, but no proposal to prefer such charge shall be adopted by that
House except upon a resolution of the House supported by not less than
two-thirds of the total membership of the House.
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(b) When a charge has been so preferred by either House of the Federal
Parliament the other House shall investigate the charge or cause the charge
to be investigated and die President shall have the right to appear and to
be represented at such investigation.
(c) If as a result of the investigation a resolution is passed supported
by not less than two-thirds of the total membership of the House by which
the charge was investigated or caused to be investigated dedaring that the
charge preferred against the President has been sustained, the resolution
shall have the effect of removing the President from his office as from the
date of the resolution.
(3) A person who holds, or who has held, office as President shall be
eligible for re-election once, but only once.
[Note : Sub-clauses (lXb) and (2) following article 12(10) of the Irish Constitution;
sub-clause (3) is also taken from the Irish Constitution.]
3. Age qualification: Every citizen of the Federation who has completed
the age of thirty-five years and is qualified for election as a member of the
House of the People shall be eligible for election as President.
[Note: This follows article II, section 1(5) of the Constitution of the United
States of America and article 12(4) of the Irish Constitution.]
4. Conditions of Presidenfs Office : (1) The President shall not be a
member of Parliament or of any Legislature and, if such a member be
elected President, he shall be deemed to have vacated his seat in Parliament
or in die Legislature concerned.
(2) The President shall not hold any other office or position of emolument.
(3) The President shall have an official residence and shall receive such
emoluments and allowances as may be determined by Act of the Federal
Parliament and, until then, such as are prescribed in Schedule...
(4) The emoluments and allowances of the President shall not be
diminished during his term of office.
[Note: These follow the provisions of articles 12(6) and 12(1) of the Irish
Constitution.]
5. Vacancies in the Office of President: Appropriate provision should
be made for elections to fill vacancies in the office of President, whether
occurring before, or at the end of the normal term of an incumbent of
that office, the detailed procedure for elections being left to be regulated
by Act of the Federal Parliament:
Provided that in the case of a vacancy occurring before the end of the
normal tom of a particular incumbent—
(a) the election to fill the vacancy shall be held as soon as possible
after, and in no case later than six months from, the date of occur¬
rence of the vacancy, and
(b) the person elected as Persident at such election shall be entitled
to hold office for the full term of five years.
6. Vice-President : (1) During the interval between the occurrence of a
vacancy in the office of President and its filling up by election and when
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the President is unable to discharge his functions owing to absence,
illness or any other cause, his functions will be discharged by the
Vice-President.
(2) The Vice-President shall be elected by both Houses of the Federal
Parliament in joint session by secret ballot on the system of proportional
representation by means of the single transferable vote and shall be
ex-officio President erf the Council of States and if a member of the Federal
Parliament is elected to be the Vice-President, he shall vacate his seat as
such member.
(3) During the time the Vice-President is acting in the {dace of the
President, the Council may, if necessary, elect a temporary Chairman.
(4) The Vice-President shall hold office for five years.
(5) No person who has not completed the age of thirty-five years can be
elected as the Vice-President.
7. Functions of the President : (1) Subject to the provisions of this
Constitution, the executive authority of the Federation shall be vested in
the President.
(2) Without prejudice to the generality of the foregoing provision—
(a) the supreme command of the Defence Forces of the Federation shall
be vested in the President;
(b) the power to grant pardons, reprieves, respites, remissions, suspen¬
sions or communications of punishment imposed by any court exercis¬
ing criminal jurisdiction shall be vested in the President in the case
of convictions—
(i) for offences against federal laws relating to matters in respect
of which the Federal Parliament has, and the unit Legislature
concerned has not, the power to make laws; and
(ii) for all offences tried by courts martial.
Such power may also be conferred on other authorities by federal law:
Provided that nothing in this sub-clause affects any power of any officer of
the armed forces of the Federation to suspend, remit or commute a sentence
passed by a court martial. Where any person has been sentenced to death in
a Province, the President shall have all such powers of suspension, remission
or commutation of sentence as are vested in the Governor of the
Province.
8. Extent of executive authority of the Federation : Subject to the provi¬
sions of this Constitution, the executive authority of the Federation shall
extend to the matters with respect to which the Federal Parliament has
power to make laws and to any other matters with respect to which autho¬
rity has been conferred on the Federation by any treaty or agreement, and
shall be exercised either through its own agency or through the units.
8A. (1) The Government erf the Federation may, by agreement with
any acceding Indian State but subject to the provisions of the Constitution
in regard to the relationship between the Indian Federation and an acceding
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Indian State, undertake any legislative, executive or judicial functions in
that State.
(2) Any such agreement entered into with an Indian State not acceding
to the Federation shall be subject to be governed by any Act relating to
the exercise of foreign jurisdiction by the Parliament of die Federation.
(3) If any such agreement covers any of the matters included in an
agreement between a Province and a State under clause 8 of the Provincial
Constitution, the latter, to the extent it is covered by the agreement with
the Federation, shall stand rescinded and revoked.
(4) On an agreement under the provisions of sub-clause (1) being con¬
cluded, the Federation may, subject to the terms of the agreement, exercise
the legislative, executive or judicial functions specified therein through
appropriate authorities.
9. The executive authority of the Ruler of a federated State shall
continue to be exercisable in that State with respect to Federal subjects,
until otherwise provided by the appropriate Federal authority, in cases where
it is considered necessary.
[Note: Like the corresponding provision in section 8(2) of the Act of 1935, this
clause gives the Rulers of Indian States, who have acceded to the Federation, con¬
current executive power even in federal subjects, until otherwise provided by
federal authority. (In this respect, the position of the Provincial units is rather
different: these have no executive power in respect of federal subjects save as given
by federal law.) Such a clause is necessary, for, otherwise, all statutory powers in
respect of federal subjects will come to an end in the acceding States upon the com¬
mencement of this Constitution.]
10. Council of Ministers: There shall be a Council of Ministers with the
Prime Minister at the head to aid and advise the President in the exercise
of his functions. The Prime Minister shall be appointed by the President
and the other Ministers shall be appointed by the President on the advice
of the Prime Minister. The Council shall be collectively responsible to the
House of the People.
11. Advocate-General for the Federation : The President shall appoint
a person, being one qualified to be appointed a judge of the Supreme Court
to be Advocate-General for the Federation, to give advice to the Federal
Government upon legal matters that may be referred or assigned to him
by the President or are assigned to him under this Act or by any federal
law, to exercise the powers and discharge the duties vested in him under
this Act or under any federal law; and in the performance of his duties,
the Advocate-General shall have right of audience in all courts situated in
the territories of the Federation. The Advocate-General shall hold office
during the pleasure of the President and shall receive such remuneration as
the President may determine.
12. Conduct of Business of the Federal Government : All executive
action of the Federal Government shall be expressed to be taken in the
name of the President
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Chapter II
The Federal Parliament
13. Constitution of the Federal Parliament: The legislative power of
the Federation shall be vested in the Parliament of the Federation which
shall consist of die President and two Houses—the Council of States and
the House of the People.
14. (1) (a) The strength of the Council of States shall be so fixed as
not to exceed one-half of the strength of the House of the People. Not
more than twenty-five members of the Council shall be returned by
functional constituencies or panels constituted on the lines of the provisions
in section 18(7) of the Irish Constitution of 1937. The balance of the members
of the Council shall be returned by constituencies representing units on a
scale to be worked out in detail:
Provided that the total representation of Indian States does not exceed
40 per cent of this balance.
Explanation .—A unit means a Province or Indian State which returns in
its own individual right members to the Federal Parliament. In the case
of Indian States which are grouped together for the purpose of returning
representatives to the Council of States a unit means the group so formed.
(b) The representatives of each unit in the Council of States shall be
elected by the elected members of the Legislature of such unit and in cases
where a Legislature consists of two Houses by the elected members of the
Lower House of that Legislature.
(c) The strength of the House of the People shall be so fixed as not to
exceed 500. The units of the Federation, whether Provinces. Indian States
or groups of Indian States, shall be divided into constituencies and the
number of representatives allotted to each constituency shall be so deter¬
mined as to ensure that there shall be not less than one representative for
every 750,000 of the population and not more than one representative for
every 500,000:
Provided that the ratio of the total number of Indian States representa¬
tives to their total population shall not be in excess of the ratio of the
total number of representatives for the Provinces to their total population.
(d) The ratio between the number of members to be elected at any time
for each constituency and the population of that constituency, as ascertained
at the last preceding census, shall, as far as practicable, be the same
throughout the territories of the Federation.
(e) The fixing of the actual strength of the Council of States and of the
House of the People, the distribution of the strength so fixed amongst the
units of the Federation, the determination of the number, nature and
constitution of functional panels or constituencies for the Council of States,
the manner in which the smaller States should be grouped into units for
purposes of election to the two Houses, the principles on which territorial
constituencies to the two Houses should be delimited and other ancillary
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
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matters shall be referred bade to and investigated by the Union Constitution
Committee. After such investigation, the Union Constitution Committee
shall submit to die President of the Constituent Assembly its recommenda¬
tions as to the provisions relating to these matters which should be inserted
in the draft text of the Union Constitution.
(2) The said representatives shall be chosen in accordance with the pro¬
visions in that behalf contained in Schedule...
Provided that the elections to the House of the People shall be on the
basis of adult suffrage.
(3) Upon the completion of each decennial census, the representation
of the several Provinces and Indian States or groups of Indian States in
the two Houses shall be readjusted by such authority, in such manner, and
from such time as the Federal Parliament may by Act determine.
(4) The Coundl of States shall be a permanent body not subject to
dissolution, but as near as may be one-third of the members thereof shall
retire in every second year in accordance with the provisions in that behalf
contained in Schedule...
(5) The House of the People, unless sooner dissolved, shall continue for
four years from the date appointed for its first meeting and no longer, and
the expiration of the said period of four years shall operate as a dissolution
of the House:
Provided that the said period may, during an emergency, be extended
by the President for a period not exceeding one year at a time and not
exceeding in any case beyond the period of six months from the expiry of
the period of the emergency.
15. There should be the usual provisions for the summoning, prorogation
and dissolution of Parliament, for regulating the relations between the two
Houses, the mode of voting, privileges of members, disqualification for
membership. Parliamentary procedure, including procedure in financial
matters. In particular. Money Bills must originate in the Lower House.
The Upper House should have power to suggest amendments in Money
Bills; the Lower House would consider them and thereafter, whether they
accept the amendments or not, the Bill as amended (where the amendments
are accepted) or in its original form (where the amendments are not
accepted) shall be presented to the President for assent and upon his assent,
shall become law. If there is any difference of opinion as to whether a Bill
is a Money Bill or not, the decision of the Speaker of the House of the
People should be final. Except in the case of Money Bills both the Houses
should have equal powers of legislation and deadlocks should be resolved
by joint meetings of the two Houses. Bills, other than Morey Bills, presented
to the President for assent may be returned by him to the Federal Legislature
for re-consideration, but no such return shall be made later than six weeks
after the passing of the Bills by the Assembly.
16. Language : In the Federal Parliament, business shall be transacted
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FRAMING OF INDIA’S CONSTITUTION
in Hindustani (Hindi or Urdu) or English, provided that the Chairman or
the Speaker, as the case may be. may permit any member who cannot
adequately express himself in either language, to address the House in his
mother tongue. The Chairman or the Speaker, as the case may be, shall
make arrangements for giving the House, whenever he thinks fit. a summary
of the speech in a language other than that used by the member and such
summary shall be included in the record of the proceedings of the House.
[Note: This follows the corresponding provisions in the Constituent Assembly
Rules.]
(Consideration of this clause was postponed.)
Chapter III
Legislative Powers of the President
17. Power of President to Promulgate Ordinances during Recess of
Parliament : (1) If at any time when the Federal Parliament is not in
session the President is satisfied that circumstances exist which render it
necessary for him to take immediate action, he may promulgate such Ordi¬
nances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this section shall have the same
force and effect as an Act of the Federal Parliament assented to by the
President, but every such Ordinance—
(a) shall be laid before the Federal Parliament and shall cease to operate
at the expiration of six weeks from the reassembly of the Federal
Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon the passing of the
second of those resolutions ; and
(b) may be withdrawn at any time by the President.
(3) If and so far as an Ordinance under this section makes any provision
which the Federal Parliament would not under this Constitution be compe¬
tent to enact, it shall be void.
[Note: The Ordinance-making power has been the subject of great criticism under
the present Constitution. It must however be pointed out that circumstances may
exist wherein the immediate promulgation of a law is absolutely necessary
and there is no time in which to summon the Federal Parliament In 1925, Lord
Reading found it necessary to make an ordinance suspending the cotton excise duty
when such action was immediately and imperatively required in the interests of the
country. A democratically elected President who has moreover to act on the advice
of Ministers responsible to Parliament, is not at all likely to abuse any Ordinance-
making power with which he may be invested. Hence the proposed provision.]
Chapter IV
The Federal Judicature
18. Supreme Court: There shall be a Supreme Court with the constitution
powers and jurisdiction recommended by the ad hoc Committee on the Union
Judiciary, except that a judge of the Supreme Court shall be appointed by
the President after consulting the Chief Justice and such other judges of the
Supreme Court as also such judges of the High Courts as may be necessary
for the purpose.
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Provision shall also be made for the removal of judges of the Supreme
Court on the following lines :
A judge of the Supreme Court of India shall not be removed from his
office except by the President cm an address from both the Houses of Parlia¬
ment of the Union in the 9ame session for such removal on the ground of
proved misbehaviour or incapacity. Further provision may be made by
federal law for the procedure to be adopted in this behalf.
Chapter V
Auditor-General of the Federation
19. Auditor-General: There shall be an Auditor-General of the Federation
who shall be appointed by the President and shall only be removed from
office in like manner and on the like grounds as a judge of the Supreme
Court.
20. Functions of Auditor-General: The duties and powers of the Auditor-
General shall follow the lines of the corresponding provisions in the
Government of India Act, 1935.
Chapter VI
Services
21. Public Service Commission: There shall be a Public Service Com¬
mission for the Federation whose composition and functions shall follow the
lines of the corresponding provisions in the Act of 1935, except that the
appointment of the Chairman and the members of the Commission shall be
made by the President.
22. Provisions should be made for the creation of all-India services whose
recruitment and conditions of service will be regulated by federal law.
Chapter VII
Elections
23. Election to the Federal Parliament: Subject to the provisions of this
Constitution, the Federal Parliament may, from time to time, make provision
with respect to all matters relating to or connected with elections to either
House of the Federal Legislature including the delimitation of constituencies:
Provided that until such provision is made, all elections shall be held
in accordance with the provisions of Schedule...and the constituencies
shall be those set out in Schedule...
24. Superintendence, Direction and Control of Elections: The superin¬
tendence. direction and control of all federal elections, held under this
Constitution, including the appointment of election tribunals for decision
of doubts and disputes arising out of or in connection with such elections,
shall be vested in a commission to be appointed by the President.
PART V
Distribution of Legislative Powers between the Federation and the Units
(Consideration of this Part was postponed.)
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PART VI
Administrative Relations between the Federation and the Units
1. The Federal Parliament in legislating for an exclusively federal subject
may devolve upon the Government of a unit, whether a Province, an
Indian State or other area, or upon any officer of that Government, the
exercise on behalf of the Federal Government of any functions in relation
to that subject.
2. (1) It will be the duty of the Government of a unit so to exercise its
executive power and authority in so far as it is necessary and applicable
for the purpose as to secure that due effect is given within the unit to
every Act of the Federal Parliament which applies to that unit; and the
authority of the Federal Government will extend to the giving of directions
to a unit Government to that end.
(2) The authority of the Federal Government will also extend to the
giving of directions to unit Governments as to the manner in which the
latter’s executive power and authority should be exercised in relation
to any matter which affects the administration of a federal subject.
3. Where by virtue of clause 1 powers and duties have been conferred
or imposed upon a Province or federated State or officers or authorities
thereof, there shall be paid by the Federation to the Province or State such
sum as may be agreed, or, in default of agreement, as may be determined
by an arbitrator appointed by the Chief Justice of the Supreme Court
in respect of any extra costs of administration incurred by the Province
or State in connection with the exercise of those powers and duties.
[Note: Cf. sections 122, 124 and 126 of the Government of India Act, 1935.]
PART vn
Finance and Borrowing Powers
1. Revenues derived from sources in respect of which the Federal Parlia¬
ment has exclusive power to make laws will be allocated as federal
revenues, but in the cases specified in the next succeeding paragraph the
Federation will be empowered or required to make assignments to units
from federal revenues.
2. Provision should be made for the levy and, if necessary, distribution
of the following taxes, viz., customs, federal excises, export duties, death
duties and taxes on income other than agricultural income and taxes on
companies.
(Consideration of clauses 1 and 2 was postponed.)
3. The Federal Government will have power to make subventions or
grants out of federal revenues for any purpose, notwithstanding that the
purpose is not one with respect to which the Federal Parliament may make
laws.
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4. The Federal Government will have power to borrow for any of the
purposes of the Federation upon the security of federal revenues subject
to such limitations and conditions as may be fixed by federal law.
5. The Federal Government will have power to grant a loan to, or
guarantee a loan by, any unit of the Federation on such terms and under
such conditions as it may prescribe.
[Note: Cf. sections 136 to 140, 162 and 163(2) of the Government of India Act,
1935.]
PART VII-A
There shall be an Inter-State Commission constituted in the manner
prescribed by Federal law, with such powers of adjudication and adminis¬
tration as may be similarly prescribed for the execution and maintenance
of the provisions of this Constitution relating to trade and commerce and
generally for adjudicating in similar matters as may be referred to it from
time to time by the President.
(Part VII-A was accepted in principle only.)
part vm
Directly Administered Areas
1. The Chief Commissioners’ Provinces should continue to be adminis¬
tered by the Centre as under the Government of India Act. 1935, as an
interim measure, the question of any change in the system being considered
subsequently, and all centrally administered areas including the Andaman
and Nicobar Islands should be specifically mentioned in the Constitution.
(Consideration held over pending report by Special Committee.)
2. Appropriate provision should be made in the Constitution for the
administration of tribal areas.
[Note: The provision to be made regarding tribal areas should incorporate the
scheme for the administration of such areas as approved by the Constituent Assembly
on the report of the Advisory Committee.]
PART DC
Miscellaneous
The provisions for the protection of minorities as approved by the Cons¬
tituent Assembly on the report of the Advisory Committee should be
incorporated in the Constitution.
PART X
Amendment oj the Constitution
(Consideration of this Part was held over.)
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FRAMING OF INDIA’S CONSTITUTION
PART XI
Transitional Provisions
1. The Government of the Federation shall be the successor to the
Government of India established under the Government of India Act, 1935,
as adapted under the provisions of the Indian Independence Act, 1947, as
regards all property, assets, rights and liabilities.
[Note: If, before the commencement of this Constitution, two successor Govern¬
ments should be set up in India, this clause may have to be amended, inasmuch as
there may be a division of assets and liabilities.]
2. (1) Subject to this Constitution, the laws in force in the territories of
the Federation immediately before the commencement of the Constitution
shall continue to be in force therein until altered, or repealed, or amended by
a competent legislature or other competent authority.
(2) The President may by order provide that as from a specified date
any law in force in the Provinces shall, until repealed or amended by
competent authority, have effect subject to such adaptations and modifica¬
tions as appear to him to be necessary or expedient for bringing the pro¬
visions of that law into accord with the provisions of this Corstitution.
3. (1) Until the Supreme Court is duly constituted under this Constitution,
the Federal Court shall be deemed to be the Supreme Court and shall
exercise all the functions of the Supreme Court.
(2) On and after the coming into force of this Constitution, the jurisdic¬
tion of the Judicial Committee of His Majesty’s Privy Council to enter¬
tain and dispose of appeals and petitions from any court in the Union of
India, including the jurisdiction in respect of criminal matters in the exer¬
cise of His Majesty’s prerogatives, shall cease, and all appeals and other
proceedings pending before the Judicial Committee of the Privy Council
shall stand transferred to, and be disposed of by the Supreme Court.
Further provision may be made by the Parliament of the Federation to
implement and give effect to this provision.
4. Excepting holders of the offices specified in Schedule..., every person
who, immediately before the date of the commencement of this Constitu¬
tion, was in the service of the Crown in India, including any judge of the
Federal Court or of any High Court, shall, on that date, be transferred to
the appropriate service of the Federation or the unit concerned and shall
hold office by a tenure corresponding to his previous tenure.
[Note: Under the next succeeding clause there will be a provisional President from
the commencement of the new Constitution, so that there will be no room for a
Governor-General. Similarly, in the Provinces there will be no room for any
Governor appointed by His Majesty. The same may be true of the holders of
certain other offices. All such offices may be enumerated in a Schedule. The
proposed provision applies to persons holding offices other than those mentioned in
the Schedule. Cf. article 77 of the transitory provisions of the Constitution of tbe
Irish Free State, 1922, reproduced below:
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REPORTS OF THE UNION CONSTITUTION COMMITTEE
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Every existing officer of the Provisional Government at the date of the coming
into operation of this Constitution (not being an officer whose services have
been lent by the British Government to the Provisional Government) shall on
that date be transferred to and become an officer of the Irish Free State
(Saorstat Eireann), and shall hold office by a tenure corresponding to his
previous tenure.]
5. (1) Until both the Houses of the Federal Parliament have been duly
constituted and summoned under this Constitution, the Constituent Assembly
shall itself exercise all the powers and discharge all the duties of both the
Houses.
Explanation .—For the purposes of this sub-clause, the Constituent
Assembly shall not include any member representing territories not included
in Schedule I.
(2) Such person as the Constituent Assembly shall have elected in this
behalf shall be the provisional President of the Federation until a Presi¬
dent has been elected as provided in Part IV of this Constitution.
(3) Such persons as shall have been appointed in this behalf by the
provisional President shall be the provisional Council of Ministers u'til
Ministers are duly appointed as provided in Part IV of this Constitution.
6. As there may be unforeseen difficulties during the transitional period,
there should be a clause in the Constitution on the following lines:
The Federal Parliament may, notwithstanding anything contained in Part
X, by Act-
la) direct that this Constitution, except the provisions of the said Part
and of this clause, shall, during such period, if any, as may be
specified in the Act, have effect subject to such adaptations and
modifications as may be so specified:
(b) make such other provisions for the purpose of removing any such
difficulties as aforesaid as may be specified in the Act.
No Act shall be made under this clause after the expiration of three
years from the commencement of this Constitution.
[Note: The-removal-of-difficulties clause is now quite usual: see, for example,
section 310 of the Government of India Act, 1935. The period of three years has
been borrowed from article 51 of the Irish Constitution. This clause will make the
process of amendment comparatively easy during the first three years.]
(Consideration of clauses 4, 5 and 6 was postponed.)
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MINUTES OF THE JOINT MEETINGS OF THE UNION
CONSTITUTION AND PROVINCIAL CONSTITUTION
COMMITTEES
June-July 1947
[Following the announcement of the June 3 Plan [sec vol. I, Docu¬
ment No. 85(0], the Union Constitution Committee and the Provin¬
cial Constitution Committee met together on June 5, 1947, to consider
the procedure to be followed in the Constituent Assembly.
Joint meetings were also held on June 7, 10, 11 and July 18. In these
meetings it was agreed that in view of the June 3 Plan, the limitations
imposed by the Cabinet Mission in its Statement of May 16, 1946 and
the procedures laid down in that Statement, were no longer applicable.
Other issues were also discussed, namely, (i) whether the Constitution
should be unitary or federal, (ii) the functions of the Governor of a
Province and the mode of his appointment, (iii) the powers of the
Union President and the Governor during an emergency in a Province,
(iv) the method of election of the President, (v) the manner of
appointment of High Court judges, and (vi) the formation of linguistic
Provinces. Two joint sub-committees were set up at these meetings
to examine, respectively, (i) the effect of the June 3 Plan on the work
of the Assembly, and (ii) the question of forming linguistic Provinces.
The minutes of the joint meetings are reproduced below.]
June 5, 1947
Present: (1) The Hon*ble Dr. Rajendra Prasad (in the Chair); (2) Pandit
Jawaharlal Nehru; (3) Sardar Vallabhbhai Patel; (4) Maulana Abul Kalam
Azad; (5) Pandit Govind Ballabh Pant; (6) Mr. Jagjivan Ram; (7) Dr. B.
R. Ambedkar; (8) Sir Alladi Krishnaswami Ayyar; (9) Mr. K. M. Munshi;
(10) Mr. K. T. Shah; (11) Dr. Syama Prasad Mookerjee; (12) Sir V. T.
Krishnamachari; (13) Sardar K. M. Panikkar; (14) Sir N. Gopalaswami
Ayyangar; (15) Dr. B. Pattabhi Sitaramayya; (16) Mr. B. G. Kher; (17) Mr.
Brijlal Biyani; (18) Dr. K. N. Katju; (19) Mr. Phulan Prasad Verma; (20)
Mr. Kiran Shankar Roy; (21) Mr. Rohini Kumar Choudhury; (22) Mr.
Jairamdas Daulatram; (23) Sardar Ujjal Singh; (24) Diwan Chaman Lall;
(25) Mr. C. M. Poonacha; (26) Mr. Radhanath Das; (27) Mr. Satyanarayan
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MINUTES OF UNION AND PROVINCIAL CONSTITUTION COMMITTEES 607
Sinha; (28) Mr. Rafi Ahmad Kidwai; (29) Mrs. Hansa Mehta; (30) Raj-
kumari Amrit Kaur; (31) Dr. H. C. Mookherjee; (32) Mr. P. Govinda
Menon; (33) Acharya J. B. Kripalani; (34) Mr. Shankarrao Deo; (35) Mr.
R. R. Diwakar; (36) Mr. S. Nagappa.
In attendance: (I) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V.
R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F.
H. B. Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy
Secretary.
The President in opening the proceedings said that they had met in a
joint session primarily to consider the effect of H. M. G.’s announcement of
the 3rd June, 1947,* on their work.
2. After discussion the following decisions were taken:
(a) In view of H. M. G.’s statement of the 3rd June. 1947, the limita¬
tions imposed by the May 16. 1946 statementt on the form of the
Constitution, and the procedure to be followed in the Constituent
Assembly, no longer existed. Consequential changes in the Rules of
Procedure should be carried out.
(b) Every attempt should be made to frame the basic parts of the
Constitution before the middle of August, 1947, by which time the
Constituent Assembly would also become the Union Legislature.
(c) The position of States’ representatives in the Constituent Assembly
when it began to function as the Union Legislature, should be
examined.
(d) The date for the next meeting of the Constituent Assembly should
as far as possible be fixed in the first week of July next
(e) The States who had not as yet joined the Constituent Assembly,
should be invited to send their representatives before the next session;
and a procedure devised by which States belonging to a group may be
able to join even though some other States in the group decided to
stand out.
(0 The Union Constitution Committee should meet at 2.45 p.m. on
June 6, 1947 and thereafter from day to day in order to finish its
work as quickly as possible.
(g) The Provincial Constitution Committee should meet at 10.30 a.m.
on June 6, 1947 and thereafter from day to day in order to finish its
work as quickly as possible.
(h) A sub-committee consisting of the following members: (1) Sardar
VaUabhbhai Patel; (2) Sir N. Gopalaswami Ayyangar; (3) Sir V. T.
Krishnamachari; (4) Dr. B. R. Ambedkar; (5) Shri K. M. Munshi;
(6) Shri Govind Ballabh Pant; (7) Sir Alladi Krishnaswami Ayyar;
(8) Sardar K. M. Panikkar; and (9) Dr. K. N. Katju, should meet at
*See vol. I, Document No. 85(i).
tSee ibid.. Document No. 48(i).
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FRAMING OF INDIA’S CONSTITUTION
9 a.m. on the 7th June, 1947, to consider in detail the consequences of
the secession of certain areas from the Union, and report to the
Union and Provincial Constitution Committees as early as possible.
June 7 , 1947
Present: (1) The HonTjle Dr. Rajendra Prasad (in the Chair); (2) Pandit
Jawaharlal Nehru; (3) Sardar Vallabhbhai Patel; (4) Pandit Govind Ballabh
Pant; (5) Mr. Jagjivan Ram; (6) Dr. B. R. Ambedkar; (7) Sir Alladi
Krishnaswami Ayyar; (8) Mr. K. M. Munshi; (9) Prof. K. T. Shah; (10)
Dr. Syama Prasad Mookerjee; (11) Sir V. T. Krishnamachari; (12) Sardar
K. M. Panikkar; (13) Sir N. Gopalaswami Ayyangar; (14) Mr. P. Govirda
Menon; (15) Dr. P. Subbarayan; (16) Mr. B. G. Kher; (17) Mr. Brijlal
Biyani; (18) Dr. K. N. Katju; (19) Mr. Phulan Prasad Verma; (20) Mr.
Kiran Shankar Roy; (21) Mr. Rohini Kumar Choudhury; (22) Mr. Jairam-
das Daulatram; (23) Diwan Chaman Lall; (24) Mr. C. M. Poonacha; (25)
Mr. Radhanath Das; (26) Mr. Satyanarayan Sinha; (27) Mr. Rah Ahmad
Kidwai; (28) Mrs. Hansa Mehta; (29) Rajkumari Amrit Kaur; (30) Dr. H.
C. Mookherjee; (31) Acharya J. B. Kripalani; (32) Mr. Shankarrao Deo;
(33) Mr. R. R. Diwakar; (34) Mr. S. Nagappa.
In attendance: (1) Sir B. N. Rau. Constitutional Adviser; (2) Mr. H. V.
R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F.
H. B. Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna. Deputy
Secretary.
The President stated that the joint meeting had been convened at the
instance of the Provincial Constitution Committee* for consideration of
the following point: whether India should be a unitary State with Pro¬
vinces functioning as agents and delegates of the Central authority, or
whether India should be a Federation of autonomous units ceding certain
specified powers to the Centre?
Pandit Nehru stated that the point was discussed by the Union Consti¬
tution Committee in its meeting? the previous day and their conclusions were
as follows:
(1) that the Constitution should be a federal structure with a strong
Centre;
(2) that there should be three exhaustive legislative lists, viz-. Federal,
Provincial and Concurrent with residuary powers to the Centre; and
(3) that the States should be on a par with the Provinces as regards
the federal legislative list, subject to the consideration of any special
matter which might be raised when the lists had been fully
prepared.
♦See Appendix.
tSee Document No. 16.
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MINUTES OF UNION AND PROVINCIAL CONSTITUTION COMMITTEES 609
(4) It was accepted as a general principle that the executive autho¬
rity of the Federation should be co-extensive with its legislative
authority.
The joint meeting accepted the above conclusions.
The committee discussed the question of the functions of the Governor
and the mode of his appointment and came to the following conclusions :
(a) There should be a Governor at the head of every Province.
(b) The Governor should be appointed by the Province, and not by
the Central Government.
(c) The Provincial executive should be of the Parliamentary Cabinet
type, with such suitable modifications as may be considered neces¬
sary in the light of Indian conditions.
(d) The Governor should be appointed by indirect election on the basis
of adult franchise through a special electoral college.
APPENDIX
NOTE FROM H. V. R. IENGAR, SECRETARY. CONSTITUENT ASSEMBLY. TO THE CHAIRMAN.
UNION CONSTITUTION COMMITTEE
June 6, 1947
At a meeting held this morning, the Provincial Constitution Committee discussed
the question of the functions of the Governor of a Province and the mode of his
appointment. Some members suggested that the Governor should, as in the United
States, have complete executive authority in a Province, nominating his Cabinet
which would be answerable to him and not to the Legislature and that he should be
elected by the people on a system of adult franchise. Some others suggested that the
Governor should be a constitutional head acting on the advice of a Prime Minister
who would be responsible to the Legislature and that he should be appointed by a
system of indirect election. Some other members suggested that the Central Gov¬
ernment should have a wide range of authority over the Provinces and that the
Governor should function as a liaison between the Central Government and the
Provincial executive and that he should be nominated by the Central Government.
In the discussion that ensued on these various suggestions, it was felt that the primary
question to be considered was whether India should be a unitary State with Provinces
functioning as agents and delegates of the Central authority or whether India should
be a Federation of autonomous units ceding certain specified powers to the Centre.
It was also considered that as this is a point of common interest to the Union
Constitution as well as the Provincial Constitution Committees, it would be desirable
to have a joint meeting for the purpose of discussion.
2. As a decision on this question is necessary for considering various points pertain¬
ing to the Provincial Constitution, the Provincial Constitution Committee request that
a joint meeting may be arranged for very urgently and, if possible, for 3 p.m.
tomorrow.
June 10, 1947
Present: (1) Dr. Rajendra Prasad (in the Chair); (2) Pandit Jawaharlal
Nehru; (3) Sardar Vallabhbhai Patel; (4) Pandit Govind Ballabh Pant;
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FRAMING OF INDIA’S CONSTITUTION
(5) Mr. Jagjivan Ram; (6) Sir Alladi Krishnaswami Ayyar; (7) Dr. B. R.
Ambcdkar; (8) Mr. K. M. Munshi; (9) Prof. K. T. Shah; (10) Dr. Syama
Prasad Mookerjee; (11) Sir V. T. Kristin amachari; (12) Sardar K. M.
Panikkar; (13) Sir N. Gopalaswami Ayyangar; (14) Mr. P. Govinda Menon;
(15) Mr. B. H. Zaidi; (16) Dr. P. Subbaravan; (17) Dr. B. Pattabhi Sita-
ramayya; (18) Mr. B. G. Kher; (19) Mr. Brijlal Biyani; (20) Dr. K. N.
Katju; (21) Mr. Phulan Prasad Verma; (22) Mr. Kiran Shankar Roy; (23)
Mr. Rohini Kumar Choudhury; (24) Sardar Ujjal Singh; (25) Diwan
Chaman Lall; (26) Mr. C. M. Poonacha; (27) Mr. Radhanath Das; (28)
Mr. Satyanarayan Sinha; (29) Mr. Rati Ahmad Kidwai; (30) Mrs. Harsa
Mehta; (31) Rajkumari Amrit Kaur; (32) Dr. H. C. Mookherjee; (33)
Acharya J. B. Kripalani; (34) Mr. Shankarrao Deo; (35) Mr. R. R.
Diwakar; (36) Mr. S. Nagappa.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V.
R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F.
H. B. Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy
Secretary.
Mr. Zaidi. who has been recently nominated to the committee and was
present at the meeting, was welcomed by the President.
2. The points contained in Secretary’s note dated June 9, 1947* were
taken up seriatim.
Point (a) ( 1): It was decided that where a Governor thought that there
was grave menace to the peace and tranquillity of his Province or any
part thereof, he might report to the President of the Union and the latter
would, thereupon, take appropriate action under the emergency powers
vested in the Union by the Constitution.
Pant ( a ) (2); It was agreed that the Constitution should contain provi¬
sion as in clause 6 of the Constitutional Adviser’s draft of the Union
Constitution in respect both of the Governor and of other high dignitaries
such as High Court judges.
Point (a) (S): High Court judges should be appointed by the President of
the Union in consultation with the Chief Justice of the Supreme Court and
the Governor and the Chief Justice of the Province concerned.
APPENDIX
NOTE CIRCULATED BY SECRETARY, CONSTITUENT ASSEMBLY, TO MEMBERS OF THE UNION
AND PROVINCIAL CONSTITUTION COMMITTEES
June 9, 1947
There will be a joint meeting of the Union and Provincial Constitution Com¬
mittees tomorrow (June 10, 1947) at 3 p.m. in the Council of State Chamber to consider
the following points :
(a) Points suggested by the Provincial Constitution Committee:
♦See Appendix.
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MINUTES OF UNION AND PROVINCIAL CONSTITUTION COMMITTEES 611
(1) The Provincial Committee has decided that the Governor of a Province
shall have the authority in his discretion to issue ordinances for the purpose
of preventing any grave menace to the peace and tranquillity of the Pro¬
vince or any part thereof. A suggestion was made that in view of the
all-India repercussions of serious disturbances in any Province, such an
ordinance should only be issued in consultation with the President of the
Union.
(2) The question of the emoluments of the Governor of a Province.
(3) The manner in which judges of a High Court may be appointed, namely;
whether by the Governor in his discretion, by the Governor acting on advice
or by the Governor in consultation with some other authority outside the
Province such as the President of the Union.
(4) The manner in which the Constitution may be amended.
(b) The following point mentioned by the President at today's meeting of the
Union Constitution Committee :
The President of the Union, according to the decision of the Union Constitution
Committee, will be a purely constitutional Head of the State. On the
other hand, the Governors of Provinces, according to the decision of the
Provincial Constitution Committee, will have certain powers to be exercised
by them in their discretion. Should this distinction be maintained?
(c) Mr. Munshi has sought permission to revise the decision reached by the
Union Constitution Committee on the mode of election of the President
Attached is an extract from his letter to the Chairman of the Union Cons¬
titution Committee.
EXTRACTS FROM K. M. MUNSHIS LETTER TO THE CHAIRMAN, UNION CONSTITUTION
COMMITTEE
June 9, 1947
The question of the election of the President and the heads of the Provinces is
therefore so interlinked that the matter may well be considered in a joint meeting of
the Union Committee and the Provinces Committee.
I, therefore, request you to arrange for a joint meeting of both the committees
where the following schemes may be considered:
1. Every five years, electors shall be elected by the adult citizens of India
throughout its territories in the proportion of one elector to one hundred
thousand citizens.
2. These electors shall at the same election elect the President of India and the
heads of the respective Provinces.
3. In the event of there being a vacancy either in the office of the President of
India or of the Head of that Province within a period of five years the same
electors shall elect the successor.
* * *
June 11, 1947
Present: (1) Dr. Rajendra Prasad (in the Chair); (2) Pandit Jawaharlal
Nehru; (3) Sardar Vallabhbhai Patel; (4) Pandit Govind BalLabh Pant;
(5) Mr. Jagjivan Ram; (6) Sir Alladi Krishnaswami Ayyar; (7) Dr. B. R.
Ambedkar; (8) Mr. K. M. Munshi; (9) Dr. Syama Prasad Mookerjee;
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FRAMING OF INDIA’S CONSTITUTION
(10) Sir V. T. Krishnamachari; (11) Sardar K. M. Panikkar; (12) Sir N. Gopala-
swami Ayyangar; (13) Mr. P. Govinda Menem; (14) Mr. B. H. Zaidi;
(15) Dr. P. Subbarayan; (16) Dr. B. Pattabhi Sitaramayya; (17) Mr. B. G.
Kher; (18) Mr. Brijlal Biyani; (19) Dr. K. N. Katju; (20) Mr. Phulan
Prasad Verma; (21) Mr. Rohini Kumar Choudhury; (22) Sardar Ujjal Singh;
(23) Diwan Chaman Lall; (24) Mr. C. M. Poonacha; (25) Mr. Radha»ath
Das; (26) Mr. Satyanarayan Sinha; (27) Mr. Rafi Ahmad Kidwai; (28)
Mrs. Hansa Mehta; (29) Rajkumari Amrit Kaur; (30) Dr. H. C. Mookherjee;
(31) Acharya J. B. Kripalani; (32) Mr. Shankarrao Deo; (33) Mr. R. R.
Diwakar; (j 4) Mr. S. Nagappa; (35) Mr. Kiran Shankar Roy.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V.
R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F.
H. B. Tyabji, Deputy Secretary; (5) Mr. Jugul Kishore Khanna, Deputy
Secretary.
The minutes of the third meeting held on the 10th June, 1947. at 3 p.m.,
were confirmed. In the discussion of the minutes on point (aXl)* it was
made clear that the Governor normally acts on the advice of the Prime
Minister but in an emergency may without such advice submit a report
to the President. What action the Union President may take on such a
report is a matter to be considered by the Union Constitution Committee.
2. The remaining points contained in the Secretary’s note dated the 9th
June 1947,t were taken up and the following decisions readied:
Point ( a ) (4); The question of how the Constitution may be amended
should be taken up at a later stage when there was a fuller picture of
what its major provisions were.
Point (b) was covered by the decision taken on point (aXl) yesterday.
Point (c ): It was decided by a majority vote to recommend to the Union
Constitution Committee that they should reconsider their decision for the
indirect election of the President through an electoral college. It was made
clear that the decisions of the joint committee, in so far as they were
in conflict with the decisions taken in either of the two committees, could
only be considered as the recommendations of the joint committee to the
committee concerned. It was then open to the committee concerned either
to accept or to reject the recommendation when making its report to the
Constituent Assembly.
3. The President read out a letter received from Mr. Diwakar requesting
that the question of the formation of linguistic Provinces should be
considered in the joint meeting, as it affected both the committees. After
discussion it was agreed that the following sub-committee of the joint
committee be appointed to consider the question of the redistribution of
*See Appendix to the minutes of the joint meeting of the two committees held
on June 10, 1947.
tSee ibid.
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MINUTES OF UNION AND PROVINCIAL CONSTITUTION COMMITTEES 613
Provinces on a linguistic and cultural basis, and to report to the joint com¬
mittee : (1) Dr. B. Pattabhi Sitaramayya; (2) Mr. K. M. Munshi; (3) Mr.
Shankarrao Deo; (4) Dr. P. Subbarayan; (5) Mr. Brijlal Biyani; (6) Mr.
R. R. Diwakar; (7) Mr. P. Govinda Menon; (8) Mr. B. G. Kher; (9) Mr. S.
Nagappa; (10) Dr. B. R. Ambedkar; (11) Sr N. Gopalaswami Ayyangar;
(12) Dr. S. P. Mookerjee.
4. Finally, it was decided that—
(a) the Union Constitution Committee should meet at 3 p.m. today in
the Council of State Chamber;
(b) the Provincial Constitution Committee should meet at 4.30 P.M.
today in the Council of State Chamber;
(c) provisionally the date for the next meeting of the Constituent
Assembly should be fixed as Monday, the 14th July, 1947; and it
was announced that no other committees of the Constituent Assem¬
bly were likely to meet before the 28th June, 1947.
July 18, 1947
Present: (1) Dr. Rajendra Prasad (in the Chair ); (2) Pandit Jawaharlal
Nehru; (3) Sardar Vallabhbhai Patel; (4) Pandit Govind Ballabh Pant;
(5) Dr. B. R. Ambedkar; (6) Sir Alladi Krishnaswami Ayyar; (7) Mr. K.
M. Munshi; (8) Prof. K. T. Shah; (9) Sir V. T. Krishnamachari; (10) Sardar
K. M. Panikkar; (11) Sir N. Gopalaswami Ayyangar; (12) Mr. P. Govinda
Menon; (13) Mr. M. A. Srinivasan; (14) Dr. P. Subbarayan; (IS) Dr. B.
Pattabhi Sitaramayya; (16) Mr. B. G. Kher; (17) Mr. Brijlal Biyani; (18)
Mr. Phulan Prasad Verma; (19) Mr. Harekrushna Mahatab; (20) Diwan
Chaman Lall; (21) Dr. P. K. Sen; (22) Mr. C. M. Poonacha; (23) Mr.
Satyanarayan Sinha; (24) Mrs. Hansa Mehta; (25) Rajkumari Amrit Kaur;
(26) Acharya J. B. Kripalani; (27) Mr. Shankarrao Deo; (28) Mr. R. R.
Diwakar.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H.
V. R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Joint Secretary; (4) Mr.
B. F. H. B. Tyabji, Deputy Secretary; (S) Mr. Jugal Kishore Khanna, Deputy
Secretary.
(1) The report of the ad hoc committee on the draft citizenship clause*
was taken up and it was decided to postpone consideration till before the
October session of the Assembly.
(2) The report of the Sub-Committee on Linguistic Provinces t was taken
up and it was decided to accept their recommendation subject to the
deletion of the words “and any other proposed Provinces that may be specified
in the order of appointment”. The recommendation of the joint committee
*See Document No. 25(iii).
tSee Document No. 20(iii).
40
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FRAMING OF INDIA’S CONSTITUTION
would have to be placed before the Assembly in the form of a resolution.
Mr. Ananthasayanam Ayyangar’s resolution will drop out
(3) Mr. Deshbandhu Gupta and Mr. Poonacha were allowed to re*agitate
the question of Chief Commissioners’ Provinces dealt with in Part VIII
of the Memorandum on the Union Constitution.*
•See Document No. 18(0.
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MINUTES OF THE MEETINGS OF THE JOINT
SUB-COMMITTEE OF THE UNION CONSTITUTION
AND PROVINCIAL CONSTITUTION COMMITTEES
June-July 1947
[The Union Constitution and the Provincial Constitution Committees
had, at their joint meetings held on June 5 and June 11, 1947, set up
two joint sub-committees to consider, respectively, ( i) the effect of
the June 3 Plan [sec vol. I, Document No. 85(f)] on the work of the
Constituent Assembly, and (it) the question of forming linguistic Pro¬
vinces (see Document No. 19). The first sub-committee met on June
8 and after reaching certain broad conclusions on the point referred
to it, appointed a special sub-committee to undertake a detailed
examination of two questions, viz., (a) the effect of the secession of the
'Pakistan areasf, in pursuance of the June 3 Plan, on the title of mem¬
bers of the Assembly belonging to those areas, and (b) whether the
Objectives Resolution (see Document No. 1) of the Assembly would
require amendment in view of the change in the situation created by
the June 3 Plan. This special sub-committee held its first meeting
on June 9 and another meeting on July 12, while the Joint Sub-
Committee on Linguistic Provinces met only once, on June 12. The
relevant minutes are reproduced below.)
([) MINUTES OF THE MEETING OF THE JOINT SUB-COMMITTEE ON
THE JUNE 3 PLAN
June 8. 1947
Present: (1) Sardar Vallabhbhai Patel (in the Chair)’, (2) Dr. Rajendra
Prasad; (3) Mr. K. M. Munshi; (4) Dr. K. N. Katju; (5) Sir V. T. Krishna-
machari; (6) Sir Alladi Krishnaswami Ayyar; (7) Sir N. Gopalaswami
Ayyangar; (8) Dr. B. R. Ambedkar; (9) Sardar K. M. Panikkar; (10) Pandit
Govind Ballabh Pant.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V.
R. Iengar. Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy Secretary.
The Chairman said that they had met to examine the effect of H. M. G.’s
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FRAMING OF INDIA’S CONSTITUTION
announcement of June 3. 1947,* on the work of the Constituent Assembly.
2. After discussion, the following conclusions were reached:
(1) The whole erf the May 16th Statementt cannot be regarded as having
been scrapped. The proposals to the splitting of the Assembly into sec¬
tions, for the formation of groups, for a double majority in voting under
clauses 15(2) and 19(vii), and for a revision of the Constitution after 10 years,
are no longer operative. So for as the powers of the Centre are concerned,
the Constituent Assembly is free by its own decision to make such varia¬
tions in the Plan of the 16th May as it considers necessary. In regard to
Indian States, the committee felt that while their entry into the Assembly
continues to be on the basis of the May 16th Statement, if the Constituent
Assembly decided to extend the scope of the Central subjects, the ceding
of wider powers by the States would be with their consent.
(2) The members now in the Constituent Assembly representing Pro¬
vinces which will be divided, including Assam, will vacate their seats as
soon as division is decided on according to the procedure in the June 3rd
Statement Each of the Provincial Legislative Assemblies will then elect
to the Constituent Assembly the revised quota of seats allotted to its Province.
(3) Sind and the North-West Frontier Province involve no division. If
the Legislature in the one case and the plebiscite in the other decides in
favour of going into the Pakistan Constituent Assembly, the members now
representing it in the existing Constituent Assembly will vacate their seats.
(4) The effect of the secession of certain areas on the title of certain
members of the Assembly belonging to the “Pakistan areas” but returned
by Provincial Assemblies in non-Pakistan areas to continue as members,
should be examined in detail by a sub-committee consisting of (1) Sir N.
Gopalaswami Ayyangar; (2) Sir Alladi Krishnaswami Ayyar; (3) Mr. K.
M. Munshi; and (4) Sir B. N. Rau.
(5) Although the Constituent Assembly will be invested with the powers
of the Dominion Parliament from August 15, it will retain a distinct entity
as the Constitution-making body. It was not considered necessary to go
further into this matter as this would be a matter to be dealt with in the
legislation which His Majesty’s Government will pass for the transfer of
power.
(6) The Objectives Resolution passed by the Constituent Assembly would
require amendment in view of the announcement of June 3, 1947. This
should be examined in detail by the same sub-committee referred to in
sub-para (4) above.
(7) The question of nationality and citizenship in the Union in the
light of the Statement erf June 3, 1947, should be examined by the same
committee which reported to the Constituent Assembly in the last session.
•See Vol. I, Document No. 86(i).
tSee Vol. I, Document No. 48(t).
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MINUTES OF THE PROVINCIAL CONSTITUTION COMMITTEES
617
(fl) MINUTES OF THE MEETINGS OF THE SPECIAL SUB-COMMITTEE
APPOINTED BY THE JOINT SUB-COMMITTEE ON JUNE 3 PLAN
June-July 1947
June 9, 1947
Present: (1) Sir N. Gopalaswami Ayyangar; (2) Sir Alladi Krishnaswami
Ayyar; (3) Dr. B. R. Ambedkar; (4) Mr. K. M. Munshi; (5) Sir B. N. Rau.
In attendance: (1) Mr. H. V. R. Iengar, Secretary (2) Mr. B. F. H. B.
Tyabji, Deputy Secretary.
After discussion the following decisions were reached :
(1) The effect of the secession of certain areas on the title of the mem¬
bers of the Assembly belonging to those areas depended on factors which
were still uncertain, and it could not usefully be examined at this stage.
(2) Only when effect had actually been given to the terms of the
announcement of June 3, 1947, could it be considered what changes, if any,
were required to be made in the Objectives Resolution passed by the
Constituent Assembly.
July 12, 1947
Present: (1) Sir N. Gopalaswami Ayyangar; (2) Sir Alladi Krishnaswami
Ayyar; (3) Mr. K. M. Munshi; (4) Dr. B. R. Ambedkar; (5) Sir B. N. Rau.
Pandit Nehru, the Chairman of the Union Constitution Committee, and
some other members of that Committee were also present.
The subcommittee came to the following decisions :
(1) On the question of the title of members belonging to the seceding
areas no steps are necessary at present.
(2) As the changes in the Objectives Resolution would only have to
be made before the final draft of the constitution, the sub-committee may
meet at a later stage to consider these changes. It is not necessary that
they should be placed before the Assembly during the July session.
(m) MINUTES OF THE MEETING OF THE JOINT SUB-COMMITTEE ON
LINGUISTIC PROVINCES
June 12, 1947
Present ; (1) Dr. B. Pattabhi Sitaramayya; (2) Mr. K. M. Munshi; (3) Mr.
Shankarrao Deo; (4) Dr. P. Subbarayan; (5) Mr. R. R. Diwakar; (6) Mr.
P. Govinda Menon; (7) Mr. B. G. Kher; (8) Mr. S. Nagappa; (9) Dr. B. R.
Ambedkar; (10) Sir N. Gopalaswami Ayyangar.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr.
H. V. R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman;
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(4) Mr. B. F. H. B. Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna.
Deputy Secretary.
Dr. B. Pattabhi Sitaramayya was elected to the Chair.
2. After discussion, the following decisions were reached unanimously:
(1) As soon as the Dominion Status Constitution coroes into operation
(August IS, 1947), the Dominion Government for the areas concerned
should appoint a commission under a Dominion Act, if necessary, to
examine the question of creating the proposed new Provinces of Andhra,
Karnataka, Kerala and Maharashtra and any other proposed Provinces that
may be specified in the order of appointment. The commission should
submit its report as early as possible, so that the new Provinces, if any.
which it may recommend may be enumerated in the new Constitution and
suitable provision made therein on the lines of sections 46 and 289 of the
Government of India Act, 1935.
(2) There should, in addition, be a provision in the new Constitution
on the lines of section 290 of Government of India Act, 1935. For this
purpose, clause 3 in the Constitutional Adviser’s memorandum on the
Union Constitution would be generally suitable; but provision should be
made for the inclusion of Indian State territory or centrally administered
areas.
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REPLIES TO THE QUESTIONNAIRE : MEMORANDA
REGARDING THE PROVINCIAL CONSTITUTION
May-June 1947
[The Provincial Constitution Committee, set up in pursuance of the
Constituent Assembly Resolution of April 30, 1947 (sec Document
No. 14), held its first meeting on May 5. It was decided at the meet-
ing that members should, by May 20, send to the Assembly Secretariat
their memoranda on the principles of a Model Provincial Constitu¬
tion f and that the Constitutional Adviser, B. N. Rau, would thereafter
circulate to the members a self-contained memorandum which might
serve as a basis of discussion. To assist the members in preparing
their memoranda, they were supplied with the questionnaire (see
Document No. 13) issued earlier to members of the Central and Pro¬
vincial Legislatures. However, by the end of the month, only seven
members of the committee, namely, Rajkumari Amrit Kaur, P. Subba-
ray an. B. G. Kher, Radhanath Das, Brijlal Biyani, K. N. Katju and
Shrimati Hansa Mehta, conveyed their views on the subject in the
form of replies to the questionnaire. In the circumstances, finding
that it was not possible to prepare a memorandum embodying the
majority view of the committee, B. N. Rau brought out, on May 30, an
independent memorandum on the principles of a Model Provincial
Constitution. Subsequently, two members of the committee, Rohini
Kumar Choudhury and Phulan Prasad Verma, sent In, respectively, a
memorandum regarding Provincial Constitution and a note entitled
‘Twelve Points for the Framing of the Provincial Constitution \ A
statement showing the replies of the committee members to the ques¬
tionnaire, a summary of Choudhury 9 s memorandum—both the state¬
ment and the summary were prepared by the Secretariat of the
Assembly for circulation, along with the other documents, to members
of the committee—and the texts of Vermds note and B. N. Rads
memorandum are reproduced below.]
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FRAMING OF INDIA’S CONSTITUTION
(i) STATEMENT SHOWING THE REPLIES OF THE MEMBERS OF THE
PROVINCIAL CONSTITUTION COMMITTEE TO THE QUESTIONNAIRE
ISSUED TO THEM
May 1947
A. HEAD OF THE PROVINCE
Q. 1. What should be the designation of the Head of a Province in the
Indian Union.?
Rajkumari Amrit Kaur: Governor.
Dr. Subbarayan: Governor.
Mr. B. G. Kher: Governor.
Dr. K. N. Katju: President.
Mr. Brijlal Biyarv: Prantadhipati or by any other name in Indian
languages in different Provinces.
Mrs. Hansa Mehta: Prantapati, equivalent to Governor in English.
Q. 2. How should he be chosen?
Rajkumari Amrit Kaur: Elected by the Provincial Legislature.
Dr. Subbarayan: Elected by an electoral college, by secret ballot;
nominations also being made by two of its members as “proposer” and
“seconder”. The members of the electoral college to be elected by each
of the districts, forming a constituency, by the method of proportional
representation with the single transferable vote. Each district to be given
representation on the electoral college on the basis of population.
Mr. B. G. Kher: The first Head of the Province to be appointed by the
interim Government on the advice of the Provincial Government for two
years. Subsequently, the Governor is to be elected by an electoral college.
Dr. K. N. Katju: Directly elected by adult suffrage of voters over twenty-
five years of age.
Mr. Brijlal Biyard: Directly by all voters; or by a college of voters
consisting of (a) all members of the Provincial Assembly, and (b) all mem¬
bers of all local bodies in the Province.
Mrs. Hansa Mehta: Elected by an electoral college consisting of the
same number of representatives as in the Provincial Assembly. The mem¬
bers of the electoral college to have some educational qualification and to
be elected on the basis of universal adult franchise.
Q. 3. What should be his term of office?
Rajkumari Amrit Kaur: Four years.
Dr. Subbarayan: Four years.
Mr. B. G. Kher: Five years.
Dr. K. N. Katju: Four years.
Mr. Brijlal Biyani: Four or five years.
Mrs. Hansa Mehta: Five years.
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Q. 4. Should he be eligible for re-election?
Rajkumari Amrit Kaur: Ordinarily eligible for re-election.
Dr. Subbarayan: Yes. but only for another term.
Mr. B. G. Kher: Yes, but only for another term.
Dr. K. N. Katju : Not to be eligible to hold office altogether for more
than two terms, and these two terms not to succeed each other.
Mr. Brijlal Biyani: Yes.
Mrs. Hansa Mehta: Yes, but no one to hold office altogether for more
than two terms.
Q. 5. Should the office rotate among the different communities in turn?
If so. how?
Rajkumari Amrit Kaur: Rotation advisable in a united India or in
Provinces where partition has not taken place.
Dr. Subbarayan: No.
Mr. B. G. Kher: No.
Mrs. Hansa Mehta: No. No statutory provision for the rotation of office
on communal lines.
Q. 6. Should there be a Vice-President or Vice-Presidents ?
Rajkumari Amrit Kaur: Not in favour of a Deputy Governor.
Dr. Subbarayan: Yes. The Deputy Governor to be elected in the same
manner as the Governor.
Mr. B. G. Kher: Yes. There should be a Deputy Governor.
Dr. K. N. Katju: Yes. The Vice-President to be elected by adult
suffrage like the President.
Mr. Brijlal Biyani: Yes. One Vice-President. Mode of election same as
in the case of the President, i.e. directly by all voters or by a college of
voters consisting of (a) all members of the Provincial Assembly, and
(b) all members of all local bodies in the Province.
Mrs. Hansa Mehta: Yes. Should be appointed by the Governor.
Q. 7. What should be the term of office of a Vice-President ?
Rajkumari Amrit Kaur: Does not arise.
Dr. Subbarayan: Coterminous with that of the Governor.
Mr. B. G. kher: Coterminous with that of the Governor.
Dr. K. N. Katju: Coterminous with that of the Governor.
Mr. Brijlal Biyani: Coterminous with that of the Governor.
Mrs. Hansa Mehta: One year.
[Note: The terms “Vice-President” and “Deputy Governor” appear to have been
used as interchangeable in relation to Provinces.]
Q. 8. What should be the functions of the Head of the Province ?
Rajkumari Amrit Kaur: Constitutional head of the Provincial Government
To be in charge of an administrative department like any other
Minister. No special powers, except those of a formal or ceremonial
character.
Dr. Subbarayan: Constitutional head with only formal and ceremonial
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functions to attend to, but with power to dissolve the Legislature if occasion
arises.
Mr. B. G • Kher: The Governor to act on the advice of the Prime
Minister in all political matters, except as otherwise provided.
Special Powers: (a) Summoning of Legislative Assembly to meet at such
time and place as he thinks fit and proroguing it; (b) return of any Bill
to the Legislative Assembly for re-consideration with or without a specific
recommendation; (c) limited veto over any Bill which could be reversed
by two-thirds majority of members of the House present and voting;
(d) passing emergency legislation on the advice of the Prime Minister;
(e) power to refer any Bill, deemed by him to be detrimental to the interests
of the Province or a part thereof or the Union, to the President of the
Union; the Bill to have no effect till the Governor notifies the President’s
assent to the measure; (f) power to grant reprieves or pardons (except in
the case of impeachment) and to commute sentences.
The Governor not to preside over the Cabinet. All communications to
the Cabinet to be through the Prime Minister.
Functions and duties of the Governor to be laid down by the Instrument
of Instructions issued by the Head of the Union.
Dr. K. N. Katju: The President to have large executive powers on the
American model.
All executive authority should reside in him and be exercised in
his name.
He should appoint chief officers of State in charge of different depart¬
ments with the concurrence of the Upper House; and also be the head of
the police and of the military force, if any, kept by the Province.
An appointment is deemed to have been approved by the Upper House
unless and until there is a vote of 60 per cent against the nomination.
Mr. Brijlal Biyaru: President to be the chief executive Head of the
Province.
The President with the Vice-President and Ministers to form the
Cabinet.
Mrs. Hansa Mehta: Powers: (a) Absolute veto over legislation which can
be overcome by a measure being passed by a two-thirds majority in the
House; (b) appoints Prime Minister who in turn recommends the appoint¬
ment of the other members of the Cabinet; (c) summoning and dissolution
of the Assembly on the advice of the Prime Minister; dissolution of the
Assembly at his discretion in case the Prime Minister has lost the support
of a majority in the Assembly; (d) communication with the Assembly by
message or address on any matter of public or national importance with
the previous approval of the Government; (e) right to pardon and commute
or remit punishment.
Q. 9. What should be the functions of the Vice-President ?
Rajkumari Amrit Kaur: Does not arise.
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623
Dr. Subbarayan: To act on all occasions when the Governor delegates
his powers to him.
To succeed as Governor in case the Governor, during his term of office,
resigns or dies or vacates his office.
Mr. B. G. Kher: To perform such duties as may be generally or sped*
fically assigned to him by the Governor.
To act in the office of the Governor in the event of the Governor’s death,
disability or absence from the Province.
Dr. K. N. Katju: Ex-officio President of the Upper House with the
same privileges as the elected Chairman of the Lower House.
To succeed to the office of the President of the Province in case of vacancy
in between two elections to that office.
Mr. Brijlal Biyaru: A member of the Cabinet.
Mrs. Hansa Mehta: The Deputy Governor to have no function as such.
Act as Governor when the Governor dies during his term of office or
resigns or is removed from office.
Q. 10. Should the Head of the Province be liable to removal? If so, in
what manner?
Rajkumari Amrit Kaur: No specific provision required.
Dr. Subbarayan: No provision required.
Mr. B. G. Kher: Both the Governor and the Deputy Governor removable
for treason or misdemeanour by impeachment before the highest judicial
tribunal in India on an address by two-thirds of the members of the
Provincial Legislative Assembly.
Dr. K. N. Katju: President to be liable to be removed for misconduct,
corruption or dereliction of duty by three-fourths vote of both the Houses
of the Legislature.
Mr. Brijlal Biyani: The President and the Vice-President to be removed
in the following manner : If the Provincial Assembly passes a vote of
no-confidence, the voting of the college of electorate is taken, and if two-
thirds majority votes for the removal of the President or Vice-President they
should be removed.
Mrs. Hansa Mehta: The Governor to be removed from office by im¬
peachment for stated misbehaviour. The charge to be prepared by the
Assembly when moved in writing by at least 30 members, and to be adopt¬
ed by at least two-thirds of the members of the Assembly.
Q. 11. How is a temporary vacancy in the office of the President to be filled?
Rajkumari Amrit Kaur: To be filled by the Legislature.
Dr. Subbarayan: The Deputy Governor to succeed as Governor.
Mr. B. G. Kher: The Deputy Governor to act as Governor. If the
offices of both the Governor and the Deputy Governor are vacant a Com¬
mission consisting of the Chief Justice and the Speaker of the Legislative
Assembly may act for the Head of the Province for a temporary period
not exceeding four months
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FRAMING OF INDIA’S CONSTITUTION
Dr. K. N. Katju: The Vice-President to succeed the President for the
remaining term of the vacancy. Failing the Vice-President, the Minister
in charge of the Home portfolio to succeed.
Mrs. Hansa Mehta: The Deputy Governor to act as Governor till the
vacancy is filled.
B. EXECUTIVE
Q. 12. What should be the nature and type of the Provincial executive?
Should it be of the British type v Parliamentary) or the American type
0 non-Parl!amentary ) or the Swiss type ( mixed) or any other type ?
Rajkumari Amrit Kaur: Leaning towards the Swiss type of executive.
Dr. Subbarayan: British system of Parliamentary Government.
Mr. B. G. Kher: British type of executive, if joint electorates are adopt¬
ed, is recommended. If separate electorates are inevitable, the Swiss type
of executive will have to be considered.
Dr. K. N. Katju: American type of executive.
Mr. Brijlal Biyarti: Leaning towards Swiss type.
Mrs. Hansa Mehta: British Parliamentary type.
Q. 13. If Parliamentary, should there be any special provision to secure a
stable executive ?
Rajkumari Amrit Kaur: Stability assured under Swiss type.
Dr. Subbarayan: No need for any such provision.
Mr. B. G. Kher: The Head of the Province to call for the resignation of
the Cabinet only on a motion of no-confidence moved in the Legislature
after due notice.
Mrs. Hansa Mehta: No special provision necessary.
Q. 14. What should be the composition of the executive ? What should be
the maximum, if any, of the number of Ministers?
Rajkumari Amrit Kaur: The question of composition to be left to the
Legislature. No statutory maximum to be fixed.
There must be a Minister for Minorities and a Ministry for Social Service.
Dr. Subbarayan: Maximum should be fixed and it should be fifteen.
Mr. B. G. Kher: No statutory limit need be laid down so that dissen¬
tient groups can be conciliated and additional Ministers appointed for new
subjects which may develop.
Mr. Brijlal Biyarti: One Minister approximately for twenty-five lakhs of
people, if the Province has a population above one crore. The proportion
may be lowered if the population is smaller.
Mrs. Hansa Mehta: Not less than seven and not more than fifteen.
Q. 15. Should provision be: made to secure representation of different com¬
munities on the executive ? If so, how ?
Rajkumari Amrit Kaur: The Swiss system automatically solves the ques¬
tion of communal representation. .
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REPLIES TO THE QUESTIONNAIRE : PROVINCIAL CONSTITUTION 625
Dr. Subbarayan: Should be settled by growth of conventions rather than
by any statutory provision.
Mr. B. G. Kher: Instrument of Instructions to the Governor should
provide for this.
Mrs. Hansa Mehta: No.
Q. 16. How should joint responsibility or coordination be secured?
Rajkumari Amrit Kaur: The executive to be required to be jointly and
severally responsible to the Legislature.
Dr. Subbarayan: By convention as in Great Britain and the Dominions.
Mr. B. G. Kher: The Prime Minister to be the co-ordinating authority.
The Instrument of Instructions to provide for the joint responsibility of
the Cabinet under the leadership of the Prime Minister commanding the
confidence of the majority.
Dr. K. N. Katju: The Head of the Province, the President, to be the
co-ordinating authority.
Mr. Brijlal Biyani: There should be joint responsibility of the
executive.
Mrs. Hansa Mehta: The members of the Cabinet to be jointly responsi¬
ble to the Legislature.
Q. 17. How should the members of the executive be chosen?
Rajkumari Amrit Kaur: To be chosen by the Legislature by the method
of proportional representation for a term of four years, which shall also be
the life of the Legislature.
Dr. Subbarayan: The Governor to call upon the person, who commands
a majority in the Legislature, to form the Ministry, and the person so
called upon, the Prime Minister, to recommend the names of his other
colleagues.
Mr. B. G. Kher: The Governor to call upon the person, who commands
a majority in the Legislature, to form the Ministry, and the person so
called upon, the Prime Minister, to recommend the names of his other
colleagues.
Dr. K. N. Katju: Minister appointed by the President for a period of
four years. In case of vacancy, another person to be appointed for the rest
of the term. Ministers to be re-eligible for appointment by succeeding
President or Presidents.
Mr. Brijlal Biyani: Elected by the members of the Provincial Assembly
by the method of single transferable vote, either from or outside the
Legislature.
Mrs. Hansa Mehta: The Governor to appoint the leader of the majority
party to be the Prime Minister who in turn would recommend for appoint¬
ment of other members.
Q. 18. What provisions should be made for the removal of the executive ?
Rajkumari Amrit Kaur: Does not arise under the Swiss system.
Dr. Subbarayan: On loss of confidence of the Legislature.
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Mr. B. G. Kher: The Cabinet to be removed from office by the Governor
only on a motion of no-confidence being moved in the Legislature after
due notice. Individual Ministers to be removed on the advice of the
Prime Minister.
Dr. K. N. Katju: The President to have the right to remove or suspend
or dismiss the Ministers.
Mr. Brijlal Biyani: Removed by a majority vote of no-confidence by
Assembly.
Mrs. Hansa Mehta: Removed by a majority vote of no-confidence by
Assembly.
Q- 19. What should be the nature of relations between the Head of the
Union and the executive?
Rajkumari Amrit Kaur: The Governor to be the constitutional Head.
To be in charge of an administrative department like any other Minister.
No special powers, except those of a formal or ceremonial character.
Dr. Subbarayan: The Governor to act on the advice of his Cabinet in
all matters, political and administrative. The Governor to possess certain
prerogative powers: the right to dissolve the Legislature, the right to
refuse dissolution and the right to select the person whom he wants to
form the Cabinet. Conventions to be developed so that his powers would
approximate to that of the King of England.
Mr. B. G. Kher: The Cabinet to be the de facto executive save for
certain special powers vested in the Governor. (See answer to Question No. 8.)
Dr. K. N. Katju: Executive authority vested in the President. He would
assign Ministers to sit in the two Houses, and has the right to remove or
suspend or dismiss them.
Mrs. Hansa Mehta: The Governor only a formal Head. He should act
on the advice of the Cabinet except when the Cabinet loses the confidence
of the Assembly. In that case the Governor would dissolve the Assembly
and call for a fresh election.
C. LEGISLATURE
Q. 20. Should the Union Legislature have a single chamber or two
chambers?
Rajkumm Amrit Kaur: Single chamber.
Dr. Subbarayan: Single chamber.
Mr. B. G. Kher: Single chamber.
Dr. K. N. Katju: Two chambers.
Mr. Brijlal Biyani: Single chamber, called the Pranteeya Jana Sabha.
Mrs. Hansa Mehta: Single chamber.
Q. 21. If bicameral, how should the two Houses be constituted?
Rajkumari Amrit Kaur: Does not arise.
Dr. Subbarayan: Does not arise.
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627
Mr. B. G. Kher: Does not arise.
Dr. K. N. Katju: The Lower House, elected by territorial constituencies
on adult suffrage and joint electorate.
The Upper House, elected on a functional basis representing all classes
and communities according to their vocation.
Mr. Brijlal Biyani: Does not arise.
Mrs. Hansa Mehta: Does not arise.
Q. 22. What provisions should be made for the adequate representation of
different communities and interests?
Rajkumari Amrit Kaur: No specific provision for any special represen¬
tation for any interests. The system of proportional representation provides
enough protection.
Dr. Subbarayan: Special representation to universities and chambers of
commerce.
Reservation of seats on the basis of joint electorates to important
minorities like the Muslims, Christians and the Scheduled Castes.
In Madras, in a House of 440, 44 seats (10 per cent) for Muslims, 20
seats for Christians, 60 seats for the Scheduled Castes and 2 for Anglo-
Indians, 3 for the universities and 2 for the chambers of commerce.
Mr. B. G. Kher: Seats reserved for special interests: (a) Commerce and
Industry : 2; (b) Landholders: 1; (c) University: 1; (d) Labour: 4 ;
(e) Women: 5 per cent of the seats.
Reservation on population basis to Backward Tribes, Scheduled Castes,
Muslims, Indian Christians and Anglo-Indians.
Any community in any constituency might demand the abolition of the
special reservation.
Dr. K. N. Katju: Reservation on population basis if the minorities
desire it.
Mr. Brijlal Biyani: No special representation.
Mrs. Hansa Mehta: No special representation except to the Backward
or Scheduled Castes for not more than 10 years.
Q. 23. What should be (a) Composition, ( b ) Franchise, (c) Electorate,
(d) Constituencies, (e) Methods of election, and (/) Allocation of seats?
(a) Composition
Rajkumari Amrit Kaur: On population basis, not less than one member
for two lakhs (2,00,000), and not more than one member per one lakh
( 1 , 00 , 000 ).
Dr. Subbarayan: 440 members. (See answer to Question No. 22.)
Mr. B. G. Kher: Normally not more than 300. One for every lakh
(1,00,000) in Bombay, i.e., 210.
Dr. K. N. Katju: Strength to depend upon the size of the Province.
Age for membership of Lower House: 25; and of Upper House: 40.
Mr. Brijlal Biyani: One member for every lakh (1,00,000) of population.
Mrs. Hansa Mehta: One for every fifty thousand.
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Members to be not less than thirty years old and to possess educational
qualification.
(b) Franchise
Rajkumari Amrit Kaur: Universal adult franchise for citizens of twenty-
one years of age and over.
Dr. Subbarayan: Adult franchise.
Mr. B. G. Kher: Literacy franchise for the first ten years.
Provision from the election laws of the American Constitution as cited
to be adopted.
Dr. K. N. Katju: Adult franchise for Lower House.
Mr. Brijlal Biyani: Adult franchise.
Mrs. HansaMehta: Adult franchise.
(c) Electorate
Rajkumari Amrit Kaur: Joint electorates.
Dr. Subbarayan: Joint electorates with reservation of seats.
Mr. B. G. Kher: Joint electorates with reservation of seats.
Dr. K. N. Katju: Joint electorates for Lower House; on the basis of
vocation for the Upper House.
Mr. Brijlal Biyani: Joint and general electorates.
Mrs. Hansa Mehta: No separate electorates.
(d) Constituencies
Rajkumari Amrit Kaur: Recommend proportional representation which
would require multi-member constituencies.
Dr. Subbarayan: Multi-member where seats are reserved, and single¬
member in the case of others.
Mr. B. G. Kher: Multi-member where seats are reserved, and single-
member in the case of others.
Mr. Brijlal Biyani: Single-member.
Mrs. Hansa Mehta: Single-member preferable.
The constituencies to be so demarcated that the minorities or the
backward classes get their representation.
(?) Methods of Election
Rajkumari Amrit Kaur: Indirect voting for the first two elections.
1,000 adults to choose one representative who would vote on their behalf
in the general election.
Dr. Subbarayan: Cumulative voting in multi-member constituencies.
Mr. B. G. Kher: Cumulative voting in multi-member constituencies.
Mr. Brijlal Biyani: Persons getting the highest number of votes to be
elected.
Mrs. Hansa Mehta: Proportional representation by the method of single
transferable vote. Doubtful if this can be worked successfully for some
time to come.
(/) Allocation of Seats
Dr. Subbarayan: (See answer to Question No. 22.)
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629
Mr. B. G. Kher: Allocation of seats to be on the basis of voting
strength.
Dr. K. N. Katju: Each constituency to have a population of 2,50.000.
Mr. Brijlal Biyani: (See answer to Question No. 23(a).)
Mrs. Hansa Mehta: (See answer to Question No. 23(a).)
Q. 24. What should be the term oj the Legislature?
Rajkumari Amrit Kaur: Four years.
Dr. Subbarayan: Five years unless sooner dissolved.
Mr. B. G. Kher: Four years unless sooner dissolved.
Mr. Brijlal Biyani: Four or Five years.
Mrs. Hansa Mehta: Five years.
Q. 25. If bicameral, what should be the relative powers of the two Houses?
What provision should be made to resolve deadlocks?
Rajkumari Amrit Kaur: Single chamber. Does not arise.
Dr. Subbarayan: Single chamber. Does not arise.
Mr. B. G. Kher: Single Chamber. Does not arise.
Dr. K. N. Katju: Concurrent powers of legislation, but the budget esti¬
mates will be presented and grants voted by the Lower House.
Mr. Brijlal Biyani: Single chamber. Does not arise.
Mrs. Hansa Mehta: Single chamber. Does not arise.
D. JUDICIARY
Q. 26. Should there be a separate chain of courts to administer Union
laws?
Rajkumari Amrit Kaur: No.
Dr. Subbarayan: No separate courts for administering any special law.
Q. 26a. What should be the constitution of the Provincial Judiciary ?
Rajkumari Amrit Kaur: There is to be High Court appointed by the
executive.
Dr. Subbarayan: The present system to be continued, the High Court
being the highest court in the Province. High Court judges to be appointed
by the Head of the Union on the recommendation of the Provincial Govern¬
ment. Other appointments to judicial offices to be made by the Provincial
Government. Members of the centrally recruited services to be eligible for
appointment in the Provincial Judiciary.
Mr. B. G. Kher: Chief Justice of the High Court to be appointed by the
Head of the Union in consultation with the Head of the Province and the
Chief Justice of India. The other judges including temporary judges to be
appointed by him in consultation with the Head of the Province and the
Chief Justice of the High Court concerned.
The Constitution Act to prescribe the strength of the judges which can
be varied only on the recommendation of the local Government ooncemed
and the sanction of the Head of the Union.
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Appointment for life subject to an age limit.
Sidary of a judge not to be varied during term of office to his dis¬
advantage.
Other provisions as in Part IX of the Government of India
Act, 1935.
Dr. K. N. Katju: The Chief Justice of the High Court to be appointed
by the President in consultation with the Minister in charge of the Depart¬
ment of Justice, subject to the confirmation of the Upper House, at least
forty per cent erf the votes being in favour of the appointment. The other
judges to be appointed in consultation with the Chief Justice and the
Minister of Justice.
Salary: Chief Justice: Rs. 2,000 per month; other judges: Rs. 1,800 per
month.
Appointments to the Bench on the basis of merit; adequate representation
of the different communities to be considered.
Not liable to dismissal unless so desired by both the Houses of Legisla¬
ture by a three-fourths majority.
All subordinate judicial officers should be entirely independent of the
executive and under the administrative control of the High Court. All
justiciable matters should be tried by one set of officers unlike at present.
Administrative justice to be avoided.
Mr. Brijlal Biyani: The head of the judiciary shall be elected by the
Provincial Assembly.
Mrs. Hansa Mehta: The Chief Judge of the Union Court or the Pre¬
sident of the Union should appoint the Chief Judge of the Province who
in turn would appoint other judges.
B. AMENDMENTS TO THE CONSTITUTION
Q. 27. What provisions should be made regarding amendments to the
Constitution ?
Rajkumari Amrit Kaur: To be brought into effect by the Legislature,
subject to a referendum which shall have been carried by a two-thirds
majority.
Dr. Subbarayan: The Constitution to be altered by an Act of the
Union Legislature on the recommendations of the Provincial Legislature.
Where minority interests are affected, consent of at least two-thirds of
the members of the minorities concerned necessary.
Mr. B. G. Kher: Initiation: Either by the Provincial or the Union Legis¬
lature.
Enactment: Approval of two-thirds of each House of Legislature, both
of the Union and the Province. At least 6 months to elapse between
the date of taking the initiation and the date of its final
enactment.
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REPLIES TO THE QUESTIONNAIRE : PROVINCIAL CONSTITUTION
631
Mr. Brijlal Biyani: Amended by the Provincial Assembly by a majority
of votes.
F. MISCELLANEOUS
(a) Public Service Commission
Rajkumari Amrit Kaur: A Public Service Commission should be cons*
tituted in every Province or group of Provinces.
Mr. B. G. Kher: Chairman and members of the Commission to be
appointed by the Head of the Province in consultation with the Prime
Minister.
Dr. K. N. Katju: Leaving aside superior officers mentioned above, all
other appointments to be made after consultation with and by die advice
of the Commission. The members to be completely independent. The
members to hold office for four years; not eligible for re-appointment on
the Commission and not to hold any public office for five years.
(b) Linguistic Provinces
Rajkumari Amrit Kaur: Adoption of the basic principles contained in
“Linguistic Provinces and Regional Arrangements’* (II), Constitutional
Precedents, 1st Series, recommended.
Dr. Subbarayan: Constituent Assembly should now appoint a Boundary
Commission with regard to the constitution of the linguistic
Provinces.
The question may be considered by the committee appointed to suggest
the basis of the Union Constitution.
(c) Local Authority
Rajkumari Amrit Kaur: Development of the Panchayat system of vital
import. Details to be left to the Provincial Legislature to work out.
{d) Fundamental Rights
Rajkumari Amrit Kaur: Fundamental rights embodied in the national
Constitution to be obligatory on the Provinces.
(e) Plebiscite or Referendum
Mr. B. G. Kher: Provision may be made on the advice of the Prime
Minister.
(f) System of public hearings by select or standing committee
Dr. K. N. Katju: Provision may be made as in U. S. A.
0?) Official representatives from Provinces to act as liaison officers between
Centre and the Provinces
Dr. K. N. Katju: To be stationed at the headquarters of the Union so
that all matters requiring personal discussion could be disposed of with¬
out unnecessary delay.
(h) Salary of President, Ministers, etc.
Dr. K. N. Katju: President: Rs. 2,500 with allowances; Vice-President:
Rs. 1,500; Ministers: 1,500.
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FRAMING OF INDIA’S CONSTITUTION
(n) MEMORANDUM ON THE PRINCIPLES OF A MODEL PROVINCIAL
CONSTITUTION PREPARED BY THE CONSTITUTIONAL ADVISER
May 30, 1947
INTRODUCTION
Replies to the questionnaire supplied to members of the Provincial
Constitution Committee have so far (up to May 30, 1947) been received
only from seven members, namely, (1) Rajkumari Amrit Kaur, (2) Dr. P.
Subbarayan, (3) Mr. B. G. Kher, (4) Mr. Radhanath Das, (5) Mr. Brijlal
Biyani, (6) Dr. K. N. Katju, (7) Mrs. Hansa Mehta. It is not, there¬
fore, possible to prepare a memorandum embodying the majority view
of the committee. In these circumstances, I have thought it best
to prepare an independent memorandum for the consideration of the
committee.
As the provisions which will have to go into the Provincial Constitu¬
tion will depend to some extent on the relations between the Union and
the units, the members of the Provincial Constitution Committee may
find it useful to have before them a copy of the memorandum prepared
for the Union Constitution Committee. I am accordingly submitting here¬
with copies of both the memoranda for the information and consideration
of the committee.
Part I
governors’ provinces
Chapter I
The Provincial Executive
Governor. 1 . For each Province there shall be a Governor elected
by the Provincial Legislature by secret vote according to
the system of proportional representation by the single
transferable vote.
[Note: In a unitary constitution and even in a federal cons¬
titution approximating to the unitary type like that of Canada,
Provincial Governors may be appointed by the Central Government
Under the Cabinet Mission’s Plan of May 16, 1946, the Union
Government will not have this power and some other method of
selecting Governors has to be adopted. We can either have direct
election by the people of the Province or some system of indirect
election. As the Governors are intended for the most part to
be responsible Heads acting on the advice of Ministers, it is
perhaps unnecessary to have direct election with all its com¬
plications. As at the Centre, we may have election by the
Legislature. This is what has been proposed in the above
provision.]
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MEMORANDUM ON MODEL PROVINCIAL CONSTITUTION
633
2. (1) The Governor shall hold office for a term of five
years, except in the event of death, resignation or removal.
(2) The Governor may be removed from office for mis¬
behaviour or infirmity erf mind or body by a resolution of
the Provincial Legislature supported by not less than two-
thirds of the total membership of the Legislature.
(3) The Governor shall be eligible for re-election once,
but only once.
[Note: I have not suggested any provision in this memorandum
as to how casual vacancies in the office of Governor are to
be filled. The majority of the replies from the members of the
committee propose that there should be a Deputy Governor,
elected in the same manner as the Governor, who would take his
place in the event of a casual vacancy. The proposal requires
careful consideration. With a Parliamentary type of executive,
there is hardly any room for a Deputy Governor in the sense that
he can hardly be given any regular functions. Where the Legis¬
lature is bicameral, he might perhaps be made ex-officio Chairman
of the Upper Chamber in the same way as the Vice-President of
the U. S. A. is the Chairman of the Senate. But apart from other
difficulties, most of the replies are against the creation of an Upper
Chamber. The result will be that we shall have a Deputy
Governor with no normal functions. There are obvious risks in
the creation of such an office. I have accordingly, for the present,
omitted any provision for a Deputy Governor.
The commission device which has been adopted for casual
vacancies at the Centre, would hardly be appropriate in a Province,
because most of the Provincial Legislatures will be unicameral. A
possible solution would be to utilise the Council of State: if this
is acceptable, the provision would run thus :
The Council of State may by a majority of its members make
such provision as it thinks fit for the discharge of the functions
of the Governor in the event of any casual vacancy or other
unforeseen contingency.]
3. The executive authority of the Province shall be exer¬
cised by the Governor either directly or through officers
subordinate to him, but this shall not prevent the Union
Parliament or the Provincial Legislature from conferring
functions upon subordinate authorities, nor shall it be
deemed to transfer to the Governor any functions confer¬
red by any existing Indian law on any court, judge or
officer or local or other authority.
4. Subject to the provisions of this Constitution and of
any special agreement, the executive authority of each Pro¬
vince shall extend to the matters with respect to which the
Legislature of the Province has power to make laws.
[Note: The reference to special agreements in this provision
requires a word of explanation. It is possible that in the future
Term of office.
Executive
authority of
Province .
Extent of the
executive
authority of
Province .
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FRAMING OF INDIA S CONSTITUTION
Council of
Ministers.
Other pro¬
visions as to
Ministers.
there may be Indian States or groups of Indian States desiring to
have a common administration with a neighbouring Province in
certain specified matters of common interest In such cases, the
Rulers concerned may by a special agreement cede the necessary
jurisdiction to the Province. Needless to say, this will not inter¬
fere with the accession of the State or States concerned to the
Union, because the accession to the Union will be in respect of
Union subjects, whereas the cession of jurisdiction contemplated
here is in respect of Provincial subjects.]
5. There shall be a Council of Ministers to aid and
advise the Governor in the exercise of his functions except
in so far as he is by or under this Constitution required
to exercise his functions or any of them in his discretion.
[Note: For the most part, the Governor will act on advice,
but there are certain functions which even a responsible Head has
to exercise in his discretion, e.g. t the choice of the Prime Minister,
the dissolution of the Legislature (in certain events), and so on.
In present circumstances, similar discretion may have to be vested
in the Governor in the matter of the protection of minorities and
the maintenance of law and order. Of course, it is possible that
if in any of these “discretionary” matters, the Governor were to
act against the advice of the Ministry, the Ministry might resign and
the Governor might not be able to find an alternative Ministry.
In such cases, the Governor would normally accept the advice of
the Ministry in preference to his own judgment, but in an extreme
case, he might dissolve the Legislature. If the new Legislature
endorses his view of the situation and returns a different party to
power, his action will have justified itself. If, however, it returns
the same party to power, the Governor will then have no option
except to act in accordance with the advice of his former Ministers.
The “discretionary” power will, in such cases, have at least the
effect of bringing the issue before the electorate.]
6. If any question arises whether a matter is one for the
Governor's discretion or not, the decision erf the Governor
in his discretion shall be final.
7. The question whether any, and, if so, what advice was
tendered by the Ministers to the Governor shall not be
enquired into in any court.
8. Subject to the provisions of the next succeeding clause,
the Governor’s Ministers shall be chosen and summoned
by him and shall hold office during his pleasure.
9. (1) The Governor may, if he thinks fit, leave all his
Ministers to be elected according to the system of propor¬
tional representation by means erf the single transferable
vote, by the Provincial Legislature or, where the Legislature
is bicameral, by the Lower Chamber of the Provincial Legis¬
lature.
(2) The normal term of office of the Ministers so
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MEMORANDUM ON MODEL PROVINCIAL CONSTITUTION
635
elected shall expire with the term of the Provincial Legis¬
lature. or. where the Legislature is bicameral, the term of
the Lower Chamber erf the Provincial Legislature which
elected them:
Provided that they shall continue in office until the elec¬
tion or appointment of their successors.
(3) Any Minister so elected shall not be removable from
office during his normal term except by a decision erf the
Provincial Legislature or. where the Legislature is bicame¬
ral. by a decision erf the Lower Chamber of the Provincial
Legislature supported by not less than two-thirds of the
total number of members of the Legislature or the chamber,
as the case may be.
(4) Vacancies among the Ministers so elected arising with¬
in the normal term erf office shall be filled at the next meet¬
ing of the Provincial Legislature for the remainder of that
term.
[Note : This provision is an attempt to introduce something
like the Swiss type of executive in those Provinces where this type
is considered preferable. The choice is left to the Governor
whether he will have this type or the British type.]
10. (1) A Minister who for any period of six consecutive
months is not a member of the Provincial Legislature shall
at the expiration of that period oeaae to be a Minister.
(2) The salaries of Ministers shall be such as the Provin¬
cial Legislature may from time to time by Act determine,
and. until the Provincial Legislature so determine, shall be
determined by the Governor:
Provided that the salary of a Minister shall not be varied
during his term of office.
11. The functions of the Governor with respect to the
choosing and summoning and the dismissal of Ministers
(except where he leaves them to be elected by the Legisla¬
ture under clause 9) and with respect to the determination
of their salaries, shall be exercised by him in his discretion.
12. The relations between the Governor and his Ministers
(except where he leaves them to be elected by the Legis¬
lature under clause 9) shall, as nearly as possible, be the
same as those between the King and his Ministers in
England.
13. (1) In the exercise of his functions, the Governor Special res-
shall have the following special responsibilities, that is to ^’covemor.
say,—
(a) the prevention of any grave menace to the peace
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636
Advocate-
General
jor Pro¬
vince.
Conduct of
business of
Provincial
Government.
Rules of
Business.
Constitution
of Provin¬
cial Legis¬
latures.
FRAMING OF INDIA’S CONSTITUTION
and tranquillity of the Province or any part thereof;
and
(b) the safeguarding of the legitimate interests of
minorities.
[Note : Until the Advisory Committee has proposed a scheme
for the administration of the excluded and partially excluded areas,
it will not be possible to say whether the Governor should be
given any special responsibilities in connection with their adminis¬
tration.]
(2) If and in so far as any special responsibility of the
Governor is involved, he shall, in the exercise of his func¬
tions, act in his discretion.
14. (1) The Governor shall appoint a person, being a
person qualified to be a judge of a High Court, to be
the Advocate-General for the Province to give advice to the
Provincial Government upon legal matters.
(2) The Advocate-General shall hold office during the
pleasure of the Governor and shall receive such remunera¬
tion as the Governor may determine.
15. All executive action of the Government of a Province
shall be expressed to be taken in the name of the
Governor.
16. The Governor shall make rules for the more
convenient transaction of the business of the Provincial
Government and for the allocation of duties among
Ministers.
Chapter II
The Provincial Legislature
17. (1) There shall for every Province be a Provincial
Legislature which will consist of the Governor and the
Legislative Assembly; in the following Provinces, there
shall, in addition, be a Legislative Council (here enumerate
those Provinces, if any, which desire to have an Upper
Chamber).
(2) The representation of the different territorial consti¬
tuencies in the Legislative Assembly shall be on the basis
of population and shall not be more than one represen¬
tative for every lakh of the population.
(3) Every Legislative Assembly of every Province, unless
sooner dissolved, shall continue for five years from the date
appointed for its first meeting.
[Note: Under the existing Constitution, Madras, Bombay,
Bengal, the United Provinces. Bihar and Assam have two cham¬
bers and the rest one. Mr. Kher, Prime Minister of Bombay, and
Dr. P. Subbarayan, Minister in Madras, no longer desire an Upper
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MEMORANDUM ON MODEL PROVINCIAL CONSTITUTION
637
Chamber in their respective Provinces. The question whether there
is to be an Upper Chamber or not in any Province, and if there
is to be one, how it is to be constituted, will probably have to be
left to the decision of the representatives of that Province in the
Constituent Assembly. So too the question whether there is to be
special representation in the Legislative Assembly for universities,
for labour, for women, and so on.]
18. The provisions for the meeting, prorogation and dis¬
solution of the Provincial Legislature, the relations between
the two chambers (where there are two chambers), the
mode of voting, the privileges erf members, disqualification
for membership, parliamentary procedure, including proce¬
dure in financial matters, etc., shall be on the lines of the
corresponding provisions in the Act of 1935.
19. In the Provincial Legislature, business shall be tran¬
sacted in Hindustani (Hindi or Urdu) or English, provided
that the Chairman (where there is an Upper Chamber) or
the Speaker, as the case may be, may permit any member
who cannot adequately express himself in either language
to address the Chamber in his mother tongue. The Chair¬
man (where there is an Upper Chamber) or the Speaker,
as the case may be, shall make arrangements for giving the
Chamber, whenever he thinks fit, a summary of the speech
in a language other than that used by the member and such
summary shall be included in the record of the proceedings
of the Chamber.
[This follows the corresponding provision in the Consti¬
tuent Assembly Rules.]
20. The Provincial Legislature may from time to time
make provisions with respect to all or any of the follow¬
ing matters, that is to say:
(a) the delimitation of territorial constituencies;
(b) the qualifications for the franchise and the prepara¬
tion of electoral rolls;
(c) the qualifications for being elected as a member of
either chamber;
(d) the filling of casual vacancies in either chamber;
(e) the conduct of elections under this Constitution
and the methods of voting thereat;
(f) the expenses of candidates at such elections;
(g) corrupt practices and other offences at or in con¬
nection with such elections;
(h) the decision of doubts and disputes arising out of
or in connection with such elections;
(i) matters ancillary to any matter as aforesaid:
Composition
of Provin¬
cial Legisla¬
tures, etc.
Language.
Franchise for
the Provincial
Legislature.
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638
FRAMING OF INDIA’S CONSTITUTION
Provided that the superintendence, direction and control
erf elections, including the appointment of election tribu¬
nals, shall be vested in the Governor acting in his discre¬
tion, but subject to the approval of the Council erf State.
Chapter III
Legislative Powers of the Governor
21. (1) If at any time when the Provincial Legislature
is not in session, the Governor is satisfied that circums¬
tances exist which render it necessary for him to take
immediate action, he may promulgate such Ordinances as the
circumstances appear to him to require.
(2) An Ordinance promulgated under this clause shall
have the same force and effect as an Act of the Provincial
Legislature assented to by the Governor, but every such
Ordinance—
(a) shall be laid before the Provincial Legislature and
shall cease to operate at the expiration of six weeks
from the reassembly of the Provincial Legislature,
or, if before the expiration of that period resolu¬
tions disapproving it are passed by the Legislature,
upon the passing of the second of those resolutions:
and
(b) may be withdrawn at any time by the Governor.
(3) If and so far as an Ordinance under this clause
makes any provision which the Provincial Legislature
would not under this Constitution be competent to enact,
it shall be void.
[Note: The Ordinance-making power has been the subject of
great criticism under the present Constitution. It must however
be pointed out that circumstances may exist where the immediate
promulgation of a law is absolutely necessary and there is no time
in which to summon the Provincial Legislature. Speaking from
memory. Lord Reading found it necessary to make an ordinance
abolishing the cotton excise duty when such action was immediately
and imperatively required in the interests of the country. The
Governor who is elected by the Provincial Legislature and who
has normally to act on the advice of Ministers responsible to the
Legislature is not at all likely to abuse any Ordinance-making
power with which he may be invested. Hence the proposed
provision.]
Chapter IV
Distribution of Legislative Powers between the Union
and Units and Administrative Relations between the
Union and the Units
[This will have to await decisions on the Report of the
Union Powers Committee.]
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MEMORANDUM ON MODEI. PROVINCIAL CONSTITUTION
639
Chapter V
Excluded and Partially Excluded Areas
[The provisions of this Chapter cannot be framed until
the Advisory Committee has reported.]
Part II
CHIEF COMMISSIONERS’ PROVINCES
1. Subject to the other provisions of this Part, a Chief
Commissioner’s Province shall be administered by the Pre¬
sident of the Union acting, to such extent as he thinks fit,
through a Chief Commissioner, or the Governor of a neigh¬
bouring Province, or the Ruler of a neighbouring Indian
State.
2. (1) The President shall not act through the Governor
erf a neighbouring Province or the Ruler of a neighbouring
Indian State save—
(a) with the consent of the Governor or the Ruler con¬
cerned; and
(b) in accordance with the wishes of the people erf
the Chief Commissioner’s Province concerned, as¬
certained in such manner as he (the President) con¬
siders most appropriate.
(2) If the consent of the Governor or the Ruler or the
people concerned is not forthcoming or is withdrawn, the
President shall act through a Chief Commissioner.
[These provisions have been suggested because some
people from Coorg have expressed a desire that Coorg
should be administered as if it were a part of the Province
of Madras; others, as if it were a part of the State of
Mysore.]
(3) The President may, by order, create or continue for
any Province administered through a Chief Commis¬
sioner—
(a) a local Legislature; and/or
(b) a Council of Advisers with such constitution,
powers and functions, in each case, as may be speci¬
fied in the order.
4. Until other provision is made in this behalf by the
President, the constitution, powers and functions of the
Coorg Legislative Council and the arrangements with res¬
pect to revenues collected in Coorg and expenses in respect
of Coorg shall remain unchanged.
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FRAMING OF INDIA’S CONSTITUTION
Part III
THE PROVINCIAL JUDICIARY
The provisions of the Government of India Act, 1935,
relating to High Courts may be adopted mutatis mutandis.
As regards the appointment of High Court judges, it
should be provided that judges shall be appointed by the
Governor with the approval of at least two-thirds of the
members of the Council of State.
[Note: The Council of State is a kind of Privy Council mainly
for advising the President of the Union in certain matters where
he is required to act in his discretion. It has been proposed in
the memorandum relating to the Union Constitution that the
appointment of judges of the Supreme Court should be made by
the President with the approval of at least two-thirds of the
members of the Council of State. It is a non-party body of elder
statesmen and judges including the Chief Justice and every ex-
Chief Justice of the Supreme Court. It will, therefore, be a suit¬
able body for approving of the appointment of judges, whether
of the Supreme Court or of the High Courts. It should be
remembered that High Court judges may be potential judges of
the Supreme Court; it is therefore not inappropriate that their
appointment should be made subject to the approval of the
Council of State.]
Part IV
PROVINCIAL PUBLIC SERVICB COMMISSIONS AND PROVINCIAL
AUDITOR-GENERAL
[Provisions regarding Public Service Commissions and
Auditors-General should be inserted on the lines of the
provisions in the Government of India Act, 1935.]
Part V
TRANSITIONAL PROVISIONS
1. Any person holding office as Governor in any Province
immediately before the commencement of this Constitution,
shall continue as such and shall be deemed to be the
Governor of the Province under this Constitution until a
successor, duly elected under this Constitution, assumes
office.
2. There should be similar provisions, mutatis mutandis ,
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REPLIES TO THE QUESTIONNAIRE : PROVINCIAL CONSTITUTION
641
in respect of the Council of Ministers, the Legislative
Assembly and the Legislative Council (in Provinces which
decide to have an Upper Chamber).
[These provisions are necessary in order that there may
be a Legislature and a Government ready to take over
power in each Province as soon as the transfer of power
takes place in or before June 1948.]
3. The Government of each Governor’s Province under
this Constitution shall be the successor of the Government
of the corresponding Province under the Government of
India Act, 1935 in respect of all property, assets, rights and
liabilities.
(in) SUMMARY OF MEMORANDUM BY ROH1NI KUMAR CHOUDHURY
REGARDING PROVINCIAL CONSTITUTION
June, 1947
Q. 1. What should be the designation of the Head of a Province in the
Indian Union ? President or ‘Rashtrapati’.
Q. 2. How should he be chosen ? Elected directly by the people.
Q. 3. What should be his term of office? Five years.
Q. 4. Should he be eligible for re-election ? Yes, but only once.
Q. 5. Should the office rotate among the different communities in turn!
If so, howl No statutory provision.
Q. 6. Should there be a Vice-President or Vice-Presidents ? Yes. One.
Q. 7. What should be the term of office of a Vice-President ? Five years.
Q. 8, What should be the functions of the Head of the Province? Same
as that of the Governor under the Government of India Act, 1935.
Exceptions: (1) Not to be vested with any special responsibilities.
(2) Should preside over the first sitting of the Legislature (of the Lower
House, in case there is a bicameral Legislature) and conduct the elections
of the Prime Minister and the Speaker.
(3) Should act as an agent of the Union Government in matters relating
to the defence and administration of the frontier tracts of the Provinces.
Q. 9. What should be the functions of the Vice-President? To act during
the absence of the President and in case of a permanent or casual vacancy
till the election of the next President.
Q. 10. Should the Head of the Province be liable to removall If so, in
what manner? Removal only on account of stated misbehaviour. In
case there are two chambers, proceedings to be initiated by the Lower House
and tried by the Upper House; decision by an ordinary majority final.
Where the Legislature is unicameral, the proceedings to be initiated on an
application of one-third of the members and decision reached by two-
thirds majority vote.
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FRAMING OF INDIA’S CONSTITUTION
Q. 11. How is a temporary vacancy in the office of the President to be
filled! Temporary vacancies by the Vice-President. Permanent vacancy
to be filled by election within three months.
Q. 12. What should be the nature and type of the Provincial executive?
Should it be of the British type ( Parliamentary ) or the American type (non-
Parliamentary ) or the Swiss type (mixed) or any other type? British
Parliamentary type.
Q. 13. If Parliamentary, should there be any special provision to secure
a stable executive ? No.
Q. 14. What should be the composition of the executive? What should
be the maximum, if any, of the number of Ministers ? No statutory pro¬
vision fixing either the maximum or the minimum.
Q. 15. Should provision be made to secure representation of different
communities on the executive? If so, how? Yes, by convention. The
President should see that the Cabinet is representative as far as possible
of all interests and communities.
Q. 16. How should joint responsibility or co-ordination be secured ?
There should be joint responsibility.
Q. 17. How should the members of the executive be chosen? Prime
Minister to be elected by the Legislature (by the Lower House, if bicameral).
The other members to be nominated by the Prime Minister. (See answer to
Question 15.)
Q. 18. What provisions should be made for the removal of the executive ?
Removable by vote of no-confidence passed by the Legislature (Lower House,
if bicameral).
Q. 19. What should be the nature of relations between the Head of the
Union and the executive? President to act on the advice of the Cabinet
so long as it retains the confidence of the Legislature.
Q. 20. Should the Union Legislature have a single chamber or two
chambers? Single chamber.
Q. 21. If bicameral, how should the two Houses be constituted? Direct
election for Lower House, if bicameral.
Q. 22. What provisions should be made for the adequate representa¬
tion of different communities and interests? Joint electorates with reserv¬
ation of seats for recognized minorities on population basis. No special
constituencies except for labour and universities.
Q. 23. What should be (a) Composition, (b) Franchise, (c) Electorate,
(d) Constituencies, (e) Methods of election, and (f) Allocation of seats?
(a) One member for every 50,000 in rural areas and one member for
every 20,000 in urban areas, (b) Adult franchise, but educational or property
qualification at least for the first election, (c) Joint electorates, (d) Single¬
member, in the case of territorial constituencies, (e) ... (f) Population
basis.
Q. 24. What should be the term of the Legislature? Lower House: five
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REPLIES TO THB QUESTIONNAIRE : PROVINCIAL CONSTITUTION 643
years. Upper House, if constituted: continuous; one-third to retire every
five years.
Q. 25. If bicameral, what should be the relative powers of the two
Housefl What provision should be made to resolve deadlocks ? Money
Bills to be laid before the Lower House only. A Bill returned by the
Upper House and passed a second time becomes law subject to the assent
of the President
Q. 26. Should there be a separate chain of courts to administer Union
laws ?...
Q. 27. What provisions should be made regarding amendments to the
Constitution ? Amended by two-thirds majority of the Legislature.
(rv) TWELVE POINTS FOR THB FRAMING OF THE PROVINCIAL
CONSTITUTION, BY PH ULAN PRASAD VERMA
June 1947
1. The sovereignty is vested in the entire people and shall be exercised
by their representatives elected on the basis of adult franchise.
2. The electorate shall be joint with reservations of seats for the minori¬
ties on population basis.
3. The Provinces shall be formed on the basis of linguistic and cultural
homogeneity as far as administratively and financially feasible.
4. The Provinces shall be completely autonomous except with respect to
subjects assigned to the Union, their autonomy being subject only to the
powers of the Centre to interfere when there is breakdown of law and
order and for the purposes of economic planning.
5. The Head of the Province shall be called a Governor. He will have
certain specified powers. He shall hold office for five years. He shall be
elected by the votes of the People’s Committees in villages, thanas, towns
and districts. Their composition and method of election to be described
later. For the purpose erf taking over power, he should be elected by the
present Provincial Legislative Assemblies. He shall not be removed by a
vote of no-confidence, but can be removed by impeachment for stated mis¬
behaviour.
6. The Council of Ministers shall be elected by the Provincial Legislature.
The responsibility shall be collective.
7. The Provincial Legislature shall be unicameral and shall legislate on
all subjects except those assigned to the Union.
8. The disputes of legal character between constituent units involving
interpretation of the Constitution shall be referred to the Supreme Court,
whose decision shall be final and binding on the parties
concerned.
9. The People’s Committees shall perform the functions of local self*
Government in matters of sanitation, education, recreation, co-operative
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FRAMING OF INDIA’S CONSTITUTION
movement, collective farming, maintenance of order, administration of
justice in petty cases.
10. The basic unit of administration shall be a self-governing village
Committee ( Panchayat ) which shall be elected by the votes of all adults
of the village.
11. Recruitment to public services shall be solely on grounds of charac¬
ter and ability. The People’s Committees shall appoint their own officers.
12. No political party based on religion shall be permitted to function.
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MINUTES OF THE MEETINGS OF THE PROVINCIAL
CONSTITUTION COMMITTEE
May-June 1947
[At its first meeting, held on May 5, 1947, the Provincial Constitu¬
tion Committee elected Sardar Patel as its Chairman and transacted
some preliminary business. The committee met again after the
announcement of the June 3 Plan [see vol. I, Document No. 85(i) ]. In
all, the committee devoted four sittings, between June 6 and 11, to
complete its assignment, Le. the formulation of “the main principles
of a model Provincial Constitution”. The discussion at these meetings
proceeded on the basis of B. N. Rau’s memorandum on the subject
[see Document No. 21(H)] and his earlier questionnaire (see Document
No. 13). The committee also held a number of joint meetings with the
Union Constitution Committee (see Document No. 19) to consider
certain questions which affected both the Union and Provincial Cons¬
titutions. The conclusions of the committee were embodied in the
memorandum annexed to its report of June 27, 1947 [see Document
No. 24(i)]. The minutes of the meetings of the committee are
reproduced below.]
May 5, 1947
Present: (1) Sardar Vallabhbhai Patel; (2) Dr. P. Subbarayan; (3) Mr.
Brijlal Biyam; (4) Mr. Phulan Prasad Verma; (5) Mr. Kiran Shankar Roy;
(6) Mr. Jairamdas Daulatram; (7) Diwan Chaman Lall; (8) Dr. P. K. Sen;
(9) Mr. Radhanath Das; (10) Mr. Satyanarayan Sinha; (11) Rajkumari
Amrit Kaur: (12) Dr. H. C. Mookherjee.
Sardar Vallabhbhai Patel was unanimously elected Chairmar. of the
committee.
2. The Secretary informed the committee of the programme fixed by
the Union Constitution Committee at its meeting held this morning.
3. It was decided that the next meeting should be held on June 2, 1947,*
and that the committee should sit from day to day till the work was
finished.
*This date was subsequently changed to June 6, 1947.
42
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FRAMING OF INDIA’S CONSTITUTION
4. There was general discussion as to the preliminary work to be done
before the next meeting of the committee. It was decided that members
should, by the 20th of May, 1947, send in memoranda to the Secretariat
expressing their views on the principles of a model Provincial Constitu¬
tion, and that the Constitutional Adviser would thereafter circulate to the
members a self-contained memorandum in the form of a draft “White
Paper” as a basis of discussion.
5. To assist the members in preparing their memoranda, it was decided
to circulate to them the questionnaire* which was recently issued by the
Constitutional Adviser to the members of the Central and Provincial
Legislatures.
6. It was decided that for the present no action was necessary in regard
to the Chief Commissioner’s Provinces.
June 6, 1947
Present : (1) Sandar Vallabhbhai Patel (Chairman ); (2) Dr. Rajendra
Prasad; (3) Acharya J. B. Kripalani; (4) Shri Shankarrrao Deo; (5) Mr. B.
G. Kher; (6) Dr. K. N. Katju; (7) Mr. Jairamdas Daulatram; (8) Mr.
Satyanarayan Sinha; (9) Mr. Rafi Ahmad Kidwai; (10) Dr. H. C. Mookherjee;
(11) Mrs. Hansa Mehta; (12) Rajkumari Amrit Kaur; (13) Mr. Brijlal
Biyani; (14) Diwan Chaman Lall; (15) Sardar Ujjal Singh; (16) Dr. B.
Pattabhi Sitaramayya; (17) Mr. R. R. Diwakar; (18) Mr. Phulan Prasad
Verma; (19) Mr. Rohini Kumar Choudhury; (20) Mr. C. M. Poonacha;
(21) Mr. Radhanath Das; (22) Mr. S. Nagappa.
Consideration of the draft memorandum! on the principles erf a model
Provincial Constitution prepared by the Constitutional Adviser was taken
up. In answer to Dr. Pattabhi Sitaramayya, the Chairman ruled that the
question of linguistic Provinces may be taken up at a joint meeting with
die Union Constitution Committee at a later stage.ft
The committee discussed the question of the functions of the Governor
of a Province and the mode of his appointment. Some members suggested
that the Governor should, as in the United States, have complete execu¬
tive authority in a Province, nominating his Cabinet which would be
answerable to him and not to the Legislature, and that he should be elected
by the people on a system of adult franchise. Some others suggested that
the Governor should be a constitutional Head acting on the advice of a
Prime Minister who would be responsible to the Legislature and that he
should be appointed by a system of indirect election. Some other mem¬
bers suggested that the Central Government should have a wide range of
•See Document No. 13.
tSee Document No. 21(ii).
ttSee Documents Nos. 19 (Minutes of the joint meetings of June 11 and July 18.
1947) and 20(tit).
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MINUTES OF THE PROVINCIAL CONSTITUTION COMMITTEE
647
authority over the Provinces and that the Governor should function as a
liaison between the Central Government and the Provincial executive and
that he should be nominated by the Centra] Government. In the discus¬
sion that ensued on these various suggestions, it was felt that the primary
question to be considered was whether India should be a unitary State
with Provinces functioning as agents and delegates of the Central authority
or whether India should be a Federation of autonomous units ceding certain
specific powers to the Centre. It was also considered that as this is a point
of common interest to the Union Constitution as well as the Provincial
Constitution Committees, it would be desirable to have a joint meeting* for
the purpose of discussion. The Secretary was asked to communicate with
the other committee and arrange for a joint meeting if possible at 3 p.m.
on the next day.
Clause 17 of chapter II was then taken up. The committee decided
that, as a general rule, there should be only one chamber, but Provinces
in which special circumstances existed, might have two.
Sub-clause (2) was adopted in the following form:
(2) The representation of the different territorial constituencies in the
Legislative Assembly shall be on the basis of population and shall not
be more than one representative for every lakh of the population subject
to a minimum of fifty.
In sub-clause (3), it was decided that the life of the Legislative Assembly
should be shortened from five to four years.
The committee decided by majority of votes to do away with the
system of special representation for university, labour, women, in the
Legislature.
June 8, 1947
Present: (1) Sardar Vallabhbhai Patel; (2) Dr. Rajendra Prasad; (3) Mr.
B. G. Kher; (4) Mr. Brijlal Biyani; (S) Dr. K. N. Katju; (6) Mr. Phulan
Prasad Verma; (7) Mr. Kiran Shankar Roy; (8) Mr. Rohini Kumar
Choudhury; (9) Mr. C. M. Poonacha; (10) Mr. Radhanath Das; (11) Mr.
Rafi Ahmad Kidwai; (12) Mrs. Hansa Mehta; (13) Rajkumari Amrit
Kaur; (14) Dr. H. C. Mookherjee; (15) Acharya J. B. Kripalani; (16) Mr.
Shankarrao Deo; (17) Mr. R. R. Diwakar; (18) Mr. S. Nagappa; (19) Dr. P.
Subbarayan.
In attendance: Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy
Secretary.
The Chairman informed the committee that the Union Constitution and
•The joint meeting was held on June 7, 1947. See Document No. 19.
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FRAMING OF INDIA’S CONSTITUTION
Provincial Constitution Committees at their joint meeting held on the 7th
June, 1947,* discussed the question of the functions of the Governor and
the mode erf his appointment and came to the following conclusions:
(a) There should be a Governor at the Head of every Province.
(b) The Governor should be appointed by the Province, and not by
the Central Government.
(c) The Provincial executive should be of the Parliamentary Cabinet
type, with such suitable modifications as may be considered neces¬
sary in the light of Indian conditions.
(d) The Governor should be appointed by indirect election on the basis
of adult franchise through a special electoral college.
The committee then decided to take up the remaining clauses of the
memorandum f on the principles erf Provincial Constitution.
Sub-clause (1) of clause 2 relating to the term of office of the Governor
was accepted.
The discussion on sub-clause (2) was held over till such time as the
Union Constitution Committee had taken a decision on a similar clause
included in the memorandum on the Union Constitution.
Sub-clause (3) was passed.
It was decided to add a sub-clause (4) laying down thirty-five as the
minimum age for candidates for governorship.
It was decided that a Governor should not remain a member of the
Legislature.
It was also decided to add a clause fixing the amount of the Governor’s
salary. Further consideration of this matter was left to the decision of a
joint meeting, f t
There was discussion on a proposal for the appointment of a Deputy
Governor. This proposal was not accepted. It was decided that temporary
vacancies, i.e., vacancies not exceeding four months in the office of the
Governor should be filled by the President of the Union. When the
vacancy is longer, a new election should be ordered to take place for
another full term in the manner laid down for the election of the Governor.
Clauses 3-7 were adopted in the form given in the memorandum.
Clauses 8 and 9 were decided to be deleted and it was agreed that nor¬
mal parliamentary procedure should be followed in appointing]
Ministers.
Clause 10 was passed.
It was decided to accept clause 11. deleting the words in brackets.
Clause 12 was accepted, as the statement of a principle, deleting the
words in brackets.
•See Document No. 19.
tSee Document No. 21(ii).
ttSee minutes of the joint meeting of the Union Constitution and Provincial
Constitution Committees held on June 10, 1947—Document No. 19.
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649
Sub-clause (1X&) of clause 13 was accepted. In regard to sub-clause
(lXb) it was decided to await the recommendations of the Minorities
Committee.
Dr. K. N. Katju suggested the insertion of a provision making it obli¬
gatory cm the Governor to cany out the directions of the Centre issued in
pursuance of Central law. The committee thought that such a provision
was unnecessary.*
Clause 14 was adopted, but the committee wanted to make it
clear that the Advocate-General should resign with the Ministry appointing
him.
Clause 15 was agreed to.
Clause 16 was adopted.
Consideration of the remaining clauses was postponed.
June 9, 1947
Present: (1) Sardar Vallabhbhai Patel (in the Chair)', (2) Dr. P. Subbarayan;
(3) Dr. B. Pattabhi Sitaramayya; (4) Mr. B. G. Kher; (5) Mr. Brijlal
Biyani; (6) Dr. K. N. Katju; (7) Mr. Phulan Prasad Verma; (8) Mr. Rohini
Kumar Choudhury; (9) Diwan Chaman Lall; (10) Mr. C. M. Poonacha;
(11) Mr. Radhanath Das: (12) Mr. Satyanarayan Sinha; (13) Mr. Rafi
Ahmad Kidwai; (14) Mrs. Hansa Mehta; (15) Rajkumari Amrit Kaur;
(16) Dr. H. C. Mookherjee; (17) Mr. Shankarrao Deo; (18) Acharya J. B.
Kripalani; (19) Mr. R. R. Diwakar; (20) Mr. S. Nagappa.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
fengar. Secretary; (3) Mr. S. N. Mukerjee, Draftsman: (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugul Kishore Khanna, Deputy
Secretary.
The minutes of the meeting held on the 8th were confirmed subject to
the addition of the following words at the end of the first paragraph! in
page 3: “in the Provincial Constitution and that its appropriate place will
be in the Union Constitution”.
2. The committee then proceeded with the consideration of chapters II
to V of the Constitutional Adviser’s memorandum.! t
Clause 17: Already considered. Mrs. Hansa Mehta asked that the ques¬
tion of the electoral college which would elect the Governor should be
*At its meeting held on June 9, 1947, the committee decided to add the following
words at the end of the paragraph: “in the Provincial Constitution and that its
appropriate place will be in the Union Constitution”. See paragraph 1 of the
minutes of June 9.
tThis refers to the paragraph regarding Katju’s suggestion for the insertion of a
provision making it obligatory on the Governor to carry out the directions of the
Centre in pursuance of Central law.
ttSee Document No. 21(ii).
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FRAMING OF INDIA’S CONSTITUTION
considered. It was decided that a subcommittee consisting of Mr. Kher,
Dr. Katju and Dr. Subbarayan should consider this matter and submit a
report to the committee.
Clause 18: Accepted. The Secretariat was asked, however, to prepare a
note showing what recommendations had been made by the different
speakers in the matter of additional privileges of members of the Legisla¬
ture. The material thus collected should be placed before the subcommittee
referred to above for consideration.
Clause 19: Should be re-drafted as follows: “In the Provincial Legisla¬
ture, business shall be transacted in the provincial language or languages
or in Hindustani (Hindi or Urdu) or in English. The Chairman (where
there is an Upper Chamber) or the Speaker, as the case may be, shall
make arrangements...”
Clause 20: Accepted, subject to the deletion of the words in the proviso:
“but subject to the approval of the Council of State.”
The committee decided that adult franchise should be introduced in all
Provinces; that an adult should be defined as any person above twenty-one
years of age; and that candidates for membership of Provincial Legislatures
should have a minimum age of twenty-five.
Clause 21: Accepted. It was explained by the Constitutional Adviser
that although clause 21 authorises the Governor to issue ordinances only
on advice, he has the authority under clause 13 to issue ordinances, for
purposes stated in that clause, in his own discretion. The committee
decided that the draft should make this point clear.
A suggestion was made in this connection that the Governor should not
issue an ordinance under sub-clause (1) of clause 13 except in consulta¬
tion with the Union President. It was decided that this point should be
discussed jointly* with the Union Constitution C omm ittee
Chapters IV and V: No decision at this stage.
Part II: It was decided that the question erf Chief Commissioners’ Pro¬
vinces should be referred to the Union Constitution Committee.
Part III: It was decided that this should be discussed in a joint meet¬
ing* with the Union Constitution Committee.
Part IV: Accepted. There was discussion on the question as to whether
the Governor should act on advice or in his discretion. It was decided by a
majority that he should act in his discretion.
Part V: Accepted.
Sub-clause (2) of clause 2 of chapter I, Part I, was then discussed and
it was decided that the Governor might be removed from office for stated
misbehaviour only by impeachment at the instance of the Provincial Legis¬
lature, by the Upper Chamber erf Central Legislature. The references to
infirmity of mind or body should be deleted.
•See Document No. 19 (Minutes of the joint meeting of June 10, 1947).
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MINUTBS OF THE PROVINCIAL CONSTITUTION COMMITTEE
651
The questionnaire* was then taken up and the following decisions were
reached (m points not already considered.
Question 14: There should be no maximum prescribed for the number
of Ministers.
Question 15: The report of the Minorities Sub-Committee should be
awaited.
Question 21: It was decided that the question of the composition of the
Second Chamber should be discussed by a sub-committee consisting of
Mr. Kher, Dr. Pattabhi Sitaramayya, Dr. Subbarayan and Dr. Katju who
should submit a report to the committee.
June 11, 1947
Present: (1) Sardar Vallabhbhai Patel (in the Chair); (2) Dr. P Subbarayan;
(3) Dr. B. Pattabhi Sitaramayya; (4) Mr. B. G. Kher; (5) Mr. Brijlal
Biyani; (6) Dr. K. N. Katju; (7) Mr. Phulan Prasad Verma; (8) Mr. Rohini
Kumar Choudhury; (9) Diwan Chaman Lall; (10) Mr. Radhanath Das;
(11) Mr. Satyanarayan Sinha; (12) Mr. Rafi Ahmad Kidwai; (13) Rajkumari
Amrit Kaur; (14) Dr. H. C. Mookherjee; (15) Mr. Shankarrao Deo; (16)
Achatya J. B. Kripalani; (17) Mr. R. R. Diwakar; (18) Mr. S. Nagappa;
(19) Sardar Ujjal Singh.
In attendance: (1) Mr. H. V. R. Iengar, Secretary; (2) Mr. Jugal Kishore
Khanna, Deputy Secretary.
The Provincial Constitution Committee in their meeting held on the 9th
June, 1947, had decided that the question of the manner of appointment
of High Court judges should be discussed in a joint meeting with the Union
Constitution Committee. The joint meeting on June 10, 1947,t recommended
that High Court judges should be appointed by the President of the Union
in consultation with the Chief Justice of the Supreme Court and the
Governor and the Chief Justice of the Province concerned. The committee
accepted this recommendation.
2. The Provincial Constitution Committee, in their meeting held on the
9th June, had decided to authorize the Governor of a Province to issue
ordinances for the purpose of preventing any grave menace to the peace
and tranquillity of the Province or any part thereof. A suggestion was
made that in view of the all-India repercussions of serious disturbances
in any province, such an ordinance should only be issued in consultation
with the President of the Union. In view of the far-reaching importance of
this question, it was agreed that the point should be discussed jointly with
the Union Constitution Committee. The Joint Committee in their meeting
held on the 10th June, 1947,t recommended that where a Governor thought
•See Document No. 13.
tSce Document No. 19.
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FRAMING OF INDIA’S CONSTITUTION
that there was grave menace to the peace and tranquillity of the Province
or any part thereof, he might report to the President of the Union and the
latter would, thereupon, take appropriate action under the emergency
powers vested in the Union by the Constitution. The Provincial Constitu¬
tion Committee accepted this view. It was made clear that this meant that
the only action which a Governor might take except on advice was to report
to the President
3. The committee considered the report of the sub-committee* relating
to the question of the electoral college to dect the Governor. It was
decided—
(a) that there should be direct election on the basis of adult
suffrage;
(b) that the duration of the office of the Governor should be co¬
terminous with the life of the Legislature, viz., four years; and
(c) that there should be simultaneous election with the election of the
members of the Lower House.
In the event of a casual vacancy in the office of the Governor, it was
decided to fill the vacancy for the remainder of the term by the vote of
the Legislature by means of the principle of absolute majority. The recom¬
mendation of the sub-committee that all election disputes relating to the
election of the Governor be referred to and decided by the Supreme Court
of the Union was accepted.
4. The committee considered the report of the sub-committee* on the
question of additional privileges of members of the Legislature and decided
that it was adequate to maintain the existing position.
5. The committee considered the report of the sub-committeef on the
question of the composition etc. of the second chamber in the Provinces.
The report of the sub-committee was adopted.
It was also decided that members of the Constituent Assembly from each
Province would vote separately and decide whether a second chamber should
be instituted for the Province.
6. The decision of the Joint Committee^ leaving it to the Legislature to
fix the salary erf the Governor except in the transition period was
approved.
7. The committee decided to stick to its previous decision with regard
to the appointment of the Public Service Commission and the Auditor-
General, viz., that the appointments should be made by the Governor in his
discretion.
•Sec minutes of the meeting of the sub-committee held on June 10, 1947—
Document No. 23(i).
tSee minutes of the meeting of the sub-committee held on June 10, 1947—
Document No. 23(H).
{This refers to the joint meeting of the Union Constitution and the Provincial
Constitution Committees held on June 10, 1947—See Document No. 19.
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MINUTES OF THE PROVINCIAL CONSTITUTION COMMITTEE
653
8. It was decided that the office should prepare a report* embodying the
decision of the committee, and circulate it to the members as soon as
possible giving about a week’s time for comments.* The committee then
adjourned sine die.
•The draft report of the committee and comments thereon are not reproduced.
For the final report and B. O. Kber’s comments thereon see Document No. 24.
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23
MINUTES OF THE MEETINGS OF SUB-COMMITTEES
APPOINTED BY THE PROVINCIAL CONSTITUTION
COMMITTEE
June 1947
[During its discussions on June 9, 1947 , the Provincial Constitution
Committee appointed two sub-committees — Sub-Committee I and Sub-
Committee II—to consider and report, respectively, on (a) the consti¬
tution of the electoral college for the election of the Governor and the
rights and privileges of the members of Provincial Legislatures and
(b) the composition of Second Chambers in the Provinces {see Document
No. 22). Sub-Committee I consisted of B. G. Kher, K. N. Katju and
P. Subbarayan, all of whom were also members of Sub-Committee II
which had one more member — B. Pattabhi Sitaramayya. Both the sub¬
committees met on June 10. The minutes of the meetings , incorporat¬
ing the sub-committee 9 s decisions, are reproduced below.]
(i) MINUTES OF THE MEETING OF SUB-COMMITTEE I
June 10, 1947
The Provincial Constitution Committee in their meeting held on the
9th June, 1947, had appointed a sub-committee consisting of Mr. B. G.
Kher, Dr. K. N. Katju and Dr. P. Subbarayan to consider the question
of the electoral college to elect the Governor and to suggest rights and
privileges of the members of the Legislature.
The sub-committee met on the 10th June, 1947, at 11 a.m. and took the
following decisions:
(a) That the members of the electoral college shall be elected by the
constituencies at the time of each general election on the scale of
one elector for every 10,000 adults. The same electoral college will
continue until a new one is constituted at the next general
election, and all vacancies during the period shall be filled by this
college.
Dr. K. N. Katju dissented. His view was that the electoral college
should be elected six months in advance of each Governor’s election
and should remain for five years.
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MINUTES OF THE SUB-COMMITTEE
655
(b) The sub-committee decided that all election disputes relating to the
election of the Governor be referred to and decided by the Supreme
Court of the Union.
The Deputy Secretary informed the sub-committee that the Speakers’
Conference held recently had not taken any decision in the matter of
additional privileges of members of the Legislature and that no recommenda¬
tions were made by different Speakers to the conference.
The sub-committee decided to adopt the same privileges for members >f
the Provincial Legislature as given in the official memorandum on the Union
Constitution.
(O) MINUTES OF THE MEETING OF SUB-COMMITTEE H
June 10. 1947
The Provincial Constitution Committee in their meeting held on the 9th
June. 1947, had appointed a sub-committee consisting of Mr. B. G. Kher.
Dr. B. Pattabhi Sitaramayya. Dr. P. Subbarayan, and Dr. K. N. Katju, to
discuss and report on the question of the composition, etc. of the second
chamber in the Provinces, where such a chamber was desired.
The subcommittee met on the 10th June, 1947, at 12 noon and took
the following decisions:
(a) That the total numerical strength of the second chamber should
not exceed twenty-five per cent of the Lower House.
(b) That there should be within certain limits functional representation
in the Upper House on the lines of the Irish Constitution, the dis¬
tribution being as follows:
One-half to be elected on functional representation on the Irish model.
One-third to be elected by the Lower House by proportional repre¬
sentation.
One-sixth to be nominated by the Governor with the advice erf his
Ministers.
(c) That the minimum age of a member should be thirty-five.
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REPORT OF THE PROVINCIAL CONSTITUTION
COMMITTEE
June-July 1947
[The Provincial Constitution Committee submitted its report to the
President of the Assembly on June 27, 1947. The report set out the
recommendations of the committee in the form of a 'Memorandum on
the Principles of a Model Provincial Constitution* and was presented
to the Constituent Assembly by the Chairman of the committee,
Vallabhbhai Patel, on July 15. The clause-wise consideration of the
memorandum prepared by the committee lasted six days. During the
discussion, clause 8 of Part l of the memorandum, which defined the
extent of the executive authority of a Province, was referred for
reconsideration to an ad hoc Committee with B. L. Mitter as Chairman.
The ad hoc committee reported on July 17 and the clause as revised
by it was adopted by the House on the following day. The report
of the committee, dated June 27, 1947; of certain comments on the
report by B. G. Kher, a member of the committee; PatePs speech while
moving the report for the consideration of the Constituent Assembly;
the report of the ad hoc committee on clause 8; and the memoran¬
dum as adopted by the Assembly are reproduced below.]
(i) REPORT OF THE PROVINCIAL CONSTITUTION COMMITTEE
June 27, 1947
From
The Hon’ble Sardar Vallabhbhai Patel.
Chairman, Provincial Constitution Committee.
To
The President,
Constituent Assembly of India.
Sot.
On behalf of the members of the committee appointed by the Hon*ble
the President in pursuance of the resolution of the Constituent Assembly
of the 30th April, 1947, to report on the principles of a model Provincial
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REPORT OF THE PROVINCIAL CONSTITUTION COMMITTEE
657
Constitution, I have the honour to submit the annexed memorandum which
embodies the recommendations of the committee together with explanatory
notes where necessary.
I have, eta,
Vallabhbhai Patel,
Chairman.
MEMORANDUM ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION
Part I
GOVERNORS’ PROVINCES
Chapter l
The Provincial Executive
1. Governor: For each Province there shall be a Governor to be elected
directly by the people on the basis of adult suffrage.
[Note: The committee were of the opinion that the election of the Governor
should, as far as possible, synchronize with the general election to the Provincial
Legislative Assembly. This may be difficult to provide by statute, because the
Legislative Assembly may be dissolved in the middle of its term.]
2. Term of Office: (1) The Governor shall hold office for a term
erf four years, except in the event of death, resignation or removal.
(2) The Governor may be removed from office for stated misbeha¬
viour by impeachment, the charge to be preferred by the Provincial
Legislature or, where the Legislature is bicameral by the Lower House
of the Provincial Legislature, and to be tried by the Upper House of the
Federal Parliament, the resolution in each case to be supported by not
less than two-thirds of the total membership of the House concerned.
(3) The Governor shall be deemed to have vacated his office by
continued absence from duty or continued incapacity or failure to dis¬
charge his functions for a period exceeding four months.
(4) The Governor shall be eligible for re-election once, but only once.
3. Casual vacancies: (1) Casual vacancies in the office erf Governor
shall be filled by election by the Provincial Legislature on the system
of proportional representation by means of the single transferable vote.
The person so elected shall hold office for the remainder of his predeces¬
sor’s term of office.
(2) In the event of the Governor’s absence from duty or incapacity
or failure to discharge his functions for a period not exceeding four
months, the President of the Federation may appoint such person as he
thinks fit to discharge the Governor’s functions until the Governor’s return
to duty or until the Governor is elected, as the case may be.
4. Age qualifications: Every citizen of the Federation of India who has
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FRAMING OF INDIA’S CONSTITUTION
reached his thirty-fifth year of age shall be eligible for election as Governor.
5. Disputes regarding election: Disputes regarding the election of a
Governor shall be enquired into and determined by the Supreme Court
of the Federation.
6. Conditions of Governor's Office: (1) The Governor shall not be a
member of the Provincial Legislature and if a member of the Provincial
Legislature be elected Governor, he shall be deemed to have vacated his
seat in that Legislature.
(2) The Governor shall not hold any other office or position of emolu¬
ment
(3) The Governor shall have an official residence and shall receive such
emoluments and allowances as may be determined by Act of the Pro¬
vincial Legislature and until then such as are prescribed in Schedule...
(4) The emoluments and allowances of the Governor shall not be
diminished during his term of office.
7. Executive authority of Province; The executive authority of the
Province shall be exercised by the Governor either directly or through
officers subordinate to him, but this shall not prevent the Federal Parlia¬
ment or the Provincial Legislature from conferring functions upon sub¬
ordinate authorities, nor shall it be deemed to transfer to the Governor
any functions conferred by any existing Indian law on any court, judge
or officer or local or other authority.
8. Extent of the executive authority, of Province: Subject to the
provisions of this Constitution and of any special agreement, the execu¬
tive authority of each Province shall extend to the matters with respect to
which the Provincial Legislature has power to make laws.
[Note: The reference to special agreements in this provision requires a word of
explanation. It is possible that in the future there may be Indian States or groups
of Indian States desiring to have a common administration with a neighbouring
Province in certain specified matters of common interest. In such cases, the Rulers
concerned may by a special agreement cede the necessary jurisdiction to the Province.
Needless to say, this will not interfere with the accession of the State or States con¬
cerned to the Federation, because the accession to the Federation will be in respect
of federal subjects, whereas the cession of jurisdiction contemplated here is in respect
of Provincial subjects.]
9. Council of Ministers: There shall be a Council of Ministers to aid
and advise the Governor in the exercise of his functions except in so far
as he is by or under this Constitution required to exercise his functions or
any erf them in his discretion.
[Note: For the most part, the Governor will act on advice, but he is required to
act in his discretion in the following matters :
(1) the prevention of any grave menace to the peace and tranquillity of the
Province or any part thereof [clause 15(2) of this Part];
(2) the summoning and dissolving of the Provincial Legislature [clause 20 of
this Part];
(3) the superintendence, direction and control of elections [clause 22, proviso (2)
of this Part];
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(4) the appointment of the Chairman and the members of the Provincial Public
Service Commission and of the Provincial Auditor-General (Part III).
It is to be noted that the Governor, under the proposed Constitution, is to be
elected by the people, so that he is not likely to abuse his “discretionary” powers.]
10. If any question arises whether a matter is one for the Governor's dis¬
cretion or not, the decision of the Governor in his discretion shall be final.
11. The question whether any, and, if so, what advice was tendered by
the Ministers to the Governor shall not be enquired into in any court.
12. Other provisions as to Ministers: The Governor’s Ministers shall
be chosen and summoned by him and shall hold office during his
pleasure.
13. (1) A Minister who for any period of six consecutive months is
not a member of the Provincial Legislature shall at the expiration of
that period cease to be a Minister.
(2) The salaries of Ministers shall be such as the Provincial Legislature
may from time to time by Act determine, and, until the Provincial Legis¬
lature so determine, shall be determined by the Governor:
Provided that the salary of a Minister shall not be varied during his
term of office.
14. Conventions of responsible Government to be observed: In the
appointment of his Ministers and his relations with them, the Governor
shall be generally guided by the conventions of responsible Government
as set out in Schedule...; but the validity of anything done by the
Governor shall not be called in question on the ground that it was done
otherwise than in accordance with these conventions.
I Note: Schedule... will take the place of the Instrument of Instructions now
issued to Governors.]
15. Special responsibilities of Governor: (1) In the exercise of his res¬
ponsibilities, the Governor shall have the following special responsibility,
namely, the prevention of any grave menace to the peace and tranquillity
of the Province or any part thereof.
(2) In the discharge of his special responsibility, the Governor shall act
in his discretion:
Provided that if at any time in the discharge of his special responsi¬
bility he considers it essential that provision should be made by legisla¬
tion, but is unable to secure such legislation, he shall make a report
to the President of the Federation who may thereupon take such action
as he considers appropriate under his emergency powers.
16. Advocate-General for Province: (1) The Governor shall appoint a
person, being one qualified to be a judge of a High Court, to be
Advocate-General for the Province to give advice to the Provincial Gov¬
ernment upon legal matters.
(2) The Advocate-General shall retire from office upon the resignation
of the Prime Minister, but may continue to carry on his duties until a
new Advocate-General shall have been appointed.
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(3) The Advocate-General shall receive such remuneration as the
Governor may determine.
17. Conduct of business af Provincial Government: All executive action
of the Government of a Province shall be expressed to be taken in the
name of the Governor.
18. Rules of business: The Governor shall make rules for the more
convenient transaction of the business of the Provincial Government and
for the allocation of duties among Ministers.
Chapter II
The Provincial Legislature
19. Constitution of Provincial Legislatures: (1) There shall for every
Province be a Provincial Legislature which will consist of the Governor
and the Legislative Assembly; in the following Provinces, there shall, in
addition, be a Legislative Council (here enumerate those Provinces, if any,
which desire to have an Upper House).
(2) The representation of the different territorial constituencies in the
Legislative Assembly shall be on the basis of population and shall be
on a scale of not more than one representative for every lakh of the
population, subject to a minimum of fifty for any Province.
The elections to the Legislative Assembly shall be on the basis of adult
suffrage, an adult being a person of not less than twenty-one years of age.
(3) Every Legislative Assembly of every Province, unless sooner dis¬
solved. shall continue for four years from the date appointed for its first
meeting.
(4) In any Province where the Legislature has an Upper House, the
composition of that House shall be as follows:
(a) The total numerical strength of the Upper House should not exceed
twenty-five per cent of that of the Lower House.
(b) There should be within certain limits functional representation in
the Upper House on the lines of the Irish Constitution, the dis¬
tribution being as follows:
one-half to be elected by functional representation on the Irish
model;
one-third to be elected by the Lower House by proportional repre¬
sentation;
one-sixth to be nominated by the Governor on the advice of his
Ministers.
[Note: Under the existing Constitution, Madras, Bombay, Bengal, the U. P.,
Bihar and Assam have two Houses and the rest one. It was agreed that the members
of the Constituent Assembly from each Province should vote separately and decide
whether an Upper House should be instituted for the Province. There is to be no
special representation in the Legislative Assembly either for universities, or for labour,
or for women.]
20. Composition of Provincial Legislatures, etc.: The provisions for the
meeting, prorogation and dissolution of the Provincial Legislature, the
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relations between the two Houses (where there are two Houses), the mode of
voting, the privileges erf members, disqualification for membership, parlia¬
mentary procedure, including procedure in financial matters, etc., shall be
on the lines of the corresponding provisions in the Act of 193S.
21. Language: In the Provincial Legislature, business shall be transacted
in the Provincial language or languages or in Hindustani (Hindi or Urdu)
or in English. The Chairman (where there is an Upper House) or the
Speaker, as the case may be, shall make arrangements for giving the
House, where he thinks fit, a summary of the speech in a language other
than that used by the member and such summary shall be included in
the record of the proceedings of the House.
22. Franchise for the Provincial Legislature: The Provincial Legislature
may from time to time make provisions with respect to all or any of
the following matters, that is to say—
(a) the delimitation of territorial constituencies;
(b) qualifications for the franchise and the preparation of electoral
rolls;
(c) the qualifications for being elected as a member of either House;
(d) the filling of casual vacancies in either House;
(e) the conduct of elections under this Constitution and the methods
of voting thereat;
(0 the expenses of candidates at such elections;
(g) corrupt practices and other offences at or in connection with such
elections;
(h) the decision of doubts and disputes arising out of or in connec¬
tion with such elections;
(i) matters ancillary to any such matter as aforesaid:
Provided—
(1) that no member of the Lower House shall be less than twenty-five
years of age and no member of the Upper House shall be less than
thirty-five years of age;
(2) that the superintendence, direction, and control of elections,
including the appointment of election tribunals shall be vested in the
Governor acting in his discretion.
Chapter 111
Legislative Powers of the Governor
23. (1) If at any time when the Provincial Legislature is not in session,
the Governor is satisfied that circumstances exist which render it neces¬
sary for him to take immediate action, he may promulgate such Ordinances
as the circumstances appear to him to require.
(2) An Ordinance promulgated under this clause shall have the same
force and effect as an Act of the Provincial Legislature assented to by
the Governor, but every such Ordinance—
(a) shall be laid before the Provincial Legislature and shall cease to
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operate at the expiration of six weeks from the reassembly of the
Provincial Legislature, or if before the expiration of that period
resolutions disapproving it are passed by the Legislature, upon the
passing of the second of those resolutions; and
(b) may be withdrawn at any time by the Governor.
(3) If and in so for as an Ordinance under this clause makes any pro¬
vision which the Provincial Legislature would not under this Constitution
be competent to enact, it shall be void.
[Note: The Ordinance-making power has been the subject of great criticism under
the present Constitution. It must however be pointed out that circumstances may
exist wherein the immediate promulgation of a law is absolutely necessary and there
is no time in which to summon the Provincial Legislature. In 1925, Lord Reading
found it necessary to make an ordinance abolishing the cotton excise duty when such
action was immediately and imperatively required in the interests of the country. The
Governor who is elected by the people and who has normally to act on the advice
of Ministers responsible to the Legislature is not at all likely to abuse any Ordinance¬
making power with which he may be invested. Hence the proposed provision,]
Chapter IV
Excluded and Partially Excluded Areas
[The provisions of this chapter cannot be framed until the Advisory
Committee has reported.]
Part n
THE PROVINCIAL JUDICIARY
1. The provisions of the Government of India Act, 1935, relating to the
High Court should be adopted, mutatis mutandis, but judges should be
appointed by the President of the Federation in consultation with Ihe
Chief Justice of the Supreme Court, the Governor of the Province and
the Chief Justice of the High Court of the Province (except when the Chief
Justice of the High Court himself is to be appointed).
2. The judges of the High Court shall receive such emoluments and
allowances as may be determined by Act of the Provincial Legislature
and until then such as are prescribed in Schedule...
3. The emoluments and allowances of the judges shall not be diminish¬
ed during their term of office.
Part in
PROVINCIAL PUBLIC SERVICE COMMISSION AND PROVINCIAL AUDITOR-GENERAL
Provisions regarding Public Service Commissions and Auditors-General
should be inserted on the lines of the provisions of the Act of 1935. The
appointment of the Chairman and members of each Provincial Public
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Service Commission and of the Auditor-General should be vested in the
Governor in his discretion.
Part IV
TRANSITIONAL PROVISIONS
1. Any person holding office as Governor in any Province immediately
before the commencement of this Constitution shall continue as such and
shall be deemed to be the Governor of the Province under this Constitu¬
tion until a successor, duly elected under this Constitution, assumes
office.
2. There should be similar provisions, mutatis mutandis, in respect of
the Council of Ministers, the Legislative Assembly and the Legislative
Council (in Provinces which decide to have an Upper House).
[Note: These provisions are necessary in order that there may be a Legislature
and a Government ready to take over power in each Province as soon as this Cons¬
titution comes into force.]
3. The Government of each Governor’s Province shall be the successor
of the Government, of the corresponding Province immediately before the
commencement of this Constitution in respect of all property, assets, rights
and liabilities.
(n) B. G. kher’s comments on the report of the provincial
CONSTITUTION COMMITTEE
June-July 1947
Chapter 1, clause 1: After the first election, synchronization of the
general election and election of the Governor will be problematical because
if before the four years expire the Assembly is dissolved, the Governor may
have to be elected in the middle of the term of the Assembly after his term
of four years expires and so on. The only way to secure synchronization
is to provide that the Governor shall resign after each dissolution. But if
this provision is made, the Governor may be reluctant to dissolve the Legisla¬
ture or may refuse to do it.
Clause 2, sub-clause (3): ‘Continued absence from duty’ can be under¬
stood. But who is to decide as regards ‘continued incapacity or failure to
discharge his functions’? Is it intended that the President erf the Union is
to decide this?
Clause 3, sub-clause (/), provides that casual vacancies shall be filled by
election. The word ‘casual’ may be omitted in view of sub-clause (2) of this
clause.
Clause 6: This clause leaves room for doubt whether the Governor will
be permitted to be a member of any Legislature other than the Provincial
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Legislature. He should not be a member of any Legislature—Federal or of
any other Province.
Clause 9: In the note: One of the matters for the Governor’s discretion
should be choosing and summoning and dismissal of Ministers.
Clause 14: One of the functions to be included in the Schedule should
be that the Governor shall dissolve the Legislature when the dissolution is
demanded by the Prime Minister.
Part III — Provincial Public Service Commission and Provincial Auditor-
General: The Union Constitution provides that the appointments to the
Public Service Co mmi ssion and of the Auditor-General should be made on
the advice of the Prime Minister. The Provincial Constitution, however,
provides that these appointments should be made by the Governor in his
discretion. If possible, the provision in the Provincial Constitution should
be brought in line with that in the Constitution of the Union.
(m) PATEL’S SPEECH MOVING THE REPORT FOR CONSIDERATION
July 15. 1947
Sir, I move that this Constituent Assembly do proceed to take into
consideration the Report on the Principles of a Model Provincial Consti¬
tution submitted by the committee appointed in pursuance of the resolu¬
tion of the Assembly of the 30th April, 1947.
This committee has submitted its report which has been circulated
amongst all the members of this House since about a fortnight and the
report is in the possession of all the members. What I wish to point out
in moving this motion is that this report is not the final draft of the Pro¬
vincial Constitution. According to the instructions given to the committee,
it has settled certain principles of the Provincial Constitution, and there¬
fore, this House need not go into the verbal details or into the exact legal
form or constitutional form of these clauses that have been submitted in
the memorandum. If the various clauses in the report are, after considera¬
tion, adopted, or improved upon, then, it will be the function of the drafts¬
men or the lawyers who will be entrusted with the work of drafting the
Constitution to put them in the proper form. Therefore, the House need
not waste its time on going into a consideration of the language of the
various clauses.
It should also be remembered that this report contains roughly about
eighty-five per cent of the draft or eighty-five per cent of the principles of
the Provincial Constitution that has to be framed. Because, you will remem¬
ber that this House has appointed an Advisory Committee which has to
submit its report after the reports of the Minorities Committee and the Tribal
and Excluded and Partially Excluded Areas Committee are received. These
reports have not yet been received. When they are received, in due course,
the advisory committee will meet and consider these reports when the
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665
question of protection of minorities rights and interests will be taken into
account. It has been agreed that this Advisory Committee should meet
during the course of this month and submit its report before this House
disperses or meets again. Therefore, that report will come at a later
stage.
Now, in dealing with the memorandum that is before you, I shall
briefly touch upon the salient features of the draft. The first question
we had naturally to consider was whether the Provincial Constitution shall
be of a unitary type or shall be of a federal type, and as there was a
little difference of opinion on this question, the committee thought it
proper to have a joint session of the Provincial Constitution Committee
and the Union Constitution Committee. Both these committees met and
they came to the conclusion that it would suit the conditions of this
country better to adopt the parliamentary system of constitution—the
British type of constitution with which we are familiar. The two com¬
mittees have agreed and the Provincial Constitution Committee has
accordingly suggested that this Constitution shall be a parliamentary type
of cabinet
Some misunderstanding may arise on some of the items mentioned in
clause 9. Clause 9 provides four items under the note. The first one
says: the prevention of any grave menace to the peace and tranquillity of
the Province or any part thereof. It means that the Governor is
probably given powers in the case of a grave menace to the peace and
tranquillity in the Provinoe. which, I may say, is not exactly the inten¬
tion of the committee. The committee, in settling this question, intended
to convey that the Governor shall have only the authority to report to the
Union President about the grave situation arising in the Province which
would involve a grave menace to the peace of the Province. It was not
their intention that this power or authority is to be exercised by the
Governor which may perhaps bring a conflict between the Ministry and
the Governor. The Governor having no control over the services, the
authority of administration entirely vests in the Ministry and, therefore,
although there was considerable difference of opinion on this question on
account of the prevailing conditions in the country—some thought that
it would be advisable under the present peculiar unsettled conditions in
the country to give some limited powers to the Governor—eventually
the committee came to the conclusion that it would not be workable, that
it would create deadlocks and, therefore, the proper course would be to
limit his powers to the extent of authorising him to report to the President
of the Union. What steps, or what authority the President of the Union
exercises would be a matter for the Union Powers Committee to provide
in the Union Constitution. But, so far as the Provincial Constitution is
concerned, it was agreed that this limited power of reporting only should
be given to the Governor.
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Then, you will see the second item in clause 9: the summoning and
dissolving of the Provincial Legislature (clause 20 of this Part). This
is a normal power which is given in every constitution to a Governor and
therefore there is nothing special about it.
The third item provides for the superintendence, direction, and con¬
trol of elections. In this matter, I think the Fundamental Rights Com¬
mittee made a recommendation that in order to ensure fair elections,
there should be appointed a Commission by the President of the Union
so that it should be above party influences and fair elections
in all provinces can be ensured. This, I think, was adopted by this
House when the fundamental rights were adopted and therefore this
clause will have to be brought into line with the former resolution adopted
by this House.
There is then the fourth item: the appointment of the Chairman and
members of the Provincial Public Service Commission and of the Provin¬
cial Auditor-General. In this matin’ also, the appointment of the Chair¬
man and the members of the Provincial Public Service Commission is
generally made on the recommendation of the Cabinet or Ministry.
Therefore, when we analyse clause 9, practically the only powers left
to the Provincial Governor is the power to report to the Union President
when a grave emergency arises threatening menace to the peace and
tranquillity of the Province and the summoning and dissolving of the
Provincial Legislature.
When we have dealt with clause 9, we then come to the recommenda¬
tions of the committee which deal with the constitution of the Legislature—
whether there should be two Houses or one House. The committee
generally agreed that there should be only one House of Legislature.
But it was also agreed that if any of the Provinces wanted a bicameral
Legislature, it should be open to the Province to set up such a Legislature,
but that the constitution of die Upper House would be, according to the
opinion of the committee, on the Irish model, where a certain percentage
is to be elected on functional representation and certain percentage to be
nominated and provision has to be made for election. Now, the recom¬
mendation erf the committee regarding the Second House is a departure
from the existing Act in so far as half of the members are to be elected
by functional representation. There will be representation in the Lower
House for special interests such as women, labour, commerce, industry,
etc. This appears to be a reasonable provision and is in accordance with
the Irish model.
The committee have given special attention to the appointment of
judges of the High Court. This is considered to be very important by
the committee and as the judiciary should be above suspicion and should
be above party influences, it was agreed that the appointment of High
Court judges should be made by the President of the Union in
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REPORT OF THE PROVINCIAL CONSTITUTION COMMITTEE 667
consultation with the Chief Justice of the Supreme Court, the Chief Justice
of the Provincial High Court and the Governor with the advice of the
Ministry of the Province concerned. So, there are many checks provided
to ensure fair appointments to the High Court These are the special features.
The principle settled by the committee is contained in the memorandum
and for the rest of the Constitution it was agreed that drafting should be
made on the adaptation of the present 1935 Act, by making suitable
alterations. Therefore, I move that this report of the committee be taken into
consideration and if the House agrees, the report may be taken up clause
by clause.
(IV) REPORT OF THE AD HOC COMMITTEE* ON CLAUSE 8 OF
PART I OF THE PROVINCIAL CONSTITUTION
July 17, 1947
The committee recommends that clause 8 be re-drafted so as to read:
It shall be competent for a Province, with the previous sanction of the
Federal Government, to undertake, by an agreement made in that
behalf with any Indian State, any legislative, executive or judicial functions
vested in that State, provided that the agreement relates to a subject in¬
cluded in the Provincial or Concurrent Legislative List
On such an agreement being concluded, the Province may, subject to the
terms thereof, exercise the legislative, executive or judicial functions spe¬
cified therein through the appropriate authorities of the Province.
(V) PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION
(As adopted by the Constituent Assembly)
Part I
governors’ provinces
Chapter l
The Provincial Executive
1. Governor: For each Province there shall be a Governor to be elected
directly by the people on the basis of adult suffrage.
2. Term of Office: (1) The Governor shall hold office for a term of four
years, except in the event of death, resignation or removal.
(2) The Governor may be removed from office for stated misbehaviour
by impeachment, the charge to be preferred by the Provincial Legislature,
•The members of the committee were :. B. L. Mitter (Chairman), Alladi Krishna-
swami Ayyar, Ismail Chundrigar, A. Ramaswami Mudaliar, B. R. Ambedkar and
K. M. Munsbi.
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FRAMING OF INDIA’S CONSTITUTION
or where the Legislature is bicameral, by the Lower House of the Provincial
Legislature, and to be confirmed by the Upper House of the Federal
Parliament after investigation by a special committee of that House, the
resolution in each case to be supported by not less than two-thirds of the
total membership of the House concerned.
(3) The Governor shall be eligible for re-election once, but only
once.
3. Deputy Governor: There shall be a Deputy Governor for every Pro¬
vince. He will be elected by the Provincial Legislature on the system of
proportional representation by single transferable vote after every general
election. The Deputy Governor will fill a casual vacancy in the office of
the Governor for the remainder of the term of office of the Governor
and he will also act for the Governor in his absence.
4. Age qualifications: (1) Every citizen of the Federation of India who
has reached his thirty-fifth year of age shall be eligible for election as
Governor.
(2) No person holding any office or position of emolument in the regular
services of the Provincial Government or the Union Government or any local
authority subordinate to the same, shall be eligible for election as Governor.
5. Disputes regarding election: Disputes regarding the election of a
Governor shall be enquired into and determined by the Supreme Court erf
the Federation.
6. Conditions of Governor’s Office: (1) The Governor shall not be a
member erf the Provincial Legislature and if a member of the Provincial
Legislature be elected Governor, he shall be deemed to have vacated his
seat in that Legislature.
(2) The Governor shall not hold any other office or position of
emolument.
(3) The Governor shall have an official residence and shall receive such
emoluments and allowances as may be determined by Act of the Provincial
Legislature and until then such as are prescribed in Schedule...
(4) The emoluments and allowances of the Governor shall not be dimini¬
shed during his term of office.
7. Executive authority of Province: The executive authority of the Pro¬
vince shall be exercised by the Governor either directly or through officers
subordinate to him, but this shall not prevent the Federal Parliament or
the Provincial Legislature from conferring functions upon subordinate
authorities, nor shall it be deemed to transfer to the Governor any functions
conferred by any existing Indian law on any court, judge or officer or local
or other authority.
8. Extent of the executive authority of Province: It shall be competent
for a Province, with the previous sanction erf the Federal Government, to
undertake, by an agreement made in that behalf with any Indian State,
any legislative, executive or judicial functions vested in that State, provided
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REPORT OF THE PROVINCIAL CONSTITUTION COMMITTEE
669
that the agreement relates to a subject included in the Provincial or Con¬
current Legislative List
On such an agreement being concluded, the Province may, subject to the
terms thereof, exercise the legislative, executive or judicial functions specified
therein through the appropriate authorities of the Province.
8A. Subject to the provisions of the Constitution and of any special
agreement referred to in clause 8, the executive authority erf each Province
shall extend to the matters with respect to which the Provincial Legislature
has power to make laws.
9. Council of Ministers: There shall be a Council of Ministers to aid and
advise the Governor in the exercise of his functions except in so far as
he is by or under this Constitution required to exercise his functions or
any of them in his discretion.
10. If any question arises whether a matter is one for the Governor’s
discretion or not, the decision of the Governor in his discretion shall
be final.
11. The question whether any, and if so what, advice was tendered by
the Ministers to the Governor shall not be enquired into in any court.
12. Other provisions as to Ministers: The Governor’s Ministers shall be
chosen and summoned by him and shall hold office during his pleasure.
13. (1) A Minister who for any period erf six consecutive months is not
a member of the Provincial Legislature shall at the expiration of that
period cease to be a Minister.
(2) The salaries of Ministers shall be such as the Provincial Legislature
may from time to time by Act determine, and, until the Provincial Legis¬
lature so determine, shall be determined by the Governor :
Provided that the salary of a Minister shall not be varied during his term
of office.
14. Conventions of responsible Government to be observed: In the
appointment of his Ministers and his relations with them, the Governor
shall be generally guided by the conventions of responsible Government
as set out in Schedule... but the validity of anything done by the Governor
shall not be called in question on the ground that it was done otherwise
than in accordance with these conventions.
[Note: Schedule... will take the place of the Instrument of Instructions
now issued to Governors.]
15. Special responsibilities of Governor: (1) Where the Governor of a
Province is satisfied in his discretion that a grave situation has arisen which
threatens the peace and tranquillity of the Province and that it is not
possible to carry on the Government of the Province with the advice of
his Ministers in accordance with the provisions of clause 9 he may, by
Proclamation, assume to himself all or any erf the functions of the Government
and all or any of the powers vested in or exercisable by any Provincial body
or authority; and any such Proclamation may contain such incidental and
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consequential provisions as may appear to him to be necessary or desirable
for giving effect to the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of this Act
relating to any Provincial body or authority :
Provided that nothing in this sub-clause shall authorise the Governor to
assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend, either in whole or in part, the operation of any pro¬
vision of this Act relating to High Courts.
(2) The Proclamation shall be forthwith communicated by the Governor
to the President of the Union, who may thereupon take such action as he
considers appropriate under his emergency powers.
(3) The Proclamation shall cease to operate at the expiration of two
weeks, unless revoked earlier by the Governor himself or by the President
of the Union.
16. Advocate-General for Province: (1) The Governor shall appoint a
person, being one qualified to be a judge ot a High Court, to be Advocate-
General for the Province to give advice to the Provincial Government upon
legal matters.
(2) The Advocate-General shall retire from office upon the resignation of
the Prime Minister, but may continue to carry on his duties until a new
Advocate-General shall have been appointed.
(3) The Advocate-General shall receive such remuneration as the Governor
may determine.
17. Conduct of business of Provincial Government: All executive action
of the Government of a Province shall be expressed to be taken in the
name of the Governor.
18. Rules of business: The Governor shall make rules for the more
convenient transaction of the business of the Provincial Government and
for the allocation of duties among Ministers.
Chapter II
The Provincial Legislature
19. Constitution of Provincial Legislatures: (1) There shall for every
Province be a Provincial Legislature which will consist of the Governor
and the Legislative Assembly; in the following Provinces, there shall, in
addition, be a Legislative Council (here enumerate those Provinces, if any,
which desire to have an Upper House).
(2) The representation of the different territorial constituencies in the
Legislative Assembly shall be on the basis of population and shall be on
a scale of not more than one representative for every lakh of the population,
subject to a minimum of sixty for any Province, and a maximum of 300.
Tlie elections to the Legislative Assembly shall be on the basis of adult
suffrage, an adult being a person not less than twenty-one years of age.
(3) Every Legislative Assembly of every Province, unless sooner dissolved,
shall continue for four years from the date appointed for its first meeting.
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671
(4) In any Province where the Legislature has an Upper House, the
composition of that House shall be as follows:
(a) The total numerical strength of the Upper House should not exceed
twenty-five per cent, of that of the Lower House.
(b) There should be within certain limits functional representation in
the Upper House on the lines of the Irish Constitution, the distribu¬
tion being as follows:
one-half to be elected by functional representation on the Irish model;
one-third to be elected by the Lower House by proportional repre¬
sentation ;
one-sixth to be nominated by the Governor on the advice of his
Ministers.
[Note: Under the existing Constitution, Madras, Bombay, Bengal, the U. P.,
Bihar and Assam have two Houses and the rest one. It was agreed that the members
of the Constituent Assembly from each Province should vote separately and decide
whether an Upper House should be instituted for the Province. There is to be no
special representation in the Legislative Assembly either for universities, or for
labour, or for women.]
20. Composition of Provincial Legislatures, etc.: The provisions for
the meeting, prorogation and dissolution of the Provincial Legislature, the
relations between the two Houses (where there are two Houses), the mode
of voting, the privileges of members, disqualification for membership, par¬
liamentary procedure, including procedure in financial matters, etc., shall
be on the lines of the corresponding provisions in the Act of 1935, with the
following changes in the provisions of section 71 of the Government of
India Act, 1935:
‘For sub-sections (3) and (4) of section 71 of the Government of India
Act, 1935, substitute the following:
The powers, privileges and immunities of the members of the
Legislature of the Province shall be such as are declared by the
Provincial Legislature and until so declared shall be those of the
members of the House of Commons of the United Kingdom and
of its members and committees at the establishment of
this Constitution.’
20A. (1) The validity of any proceedings in a Provincial Legislature
diall not be called in question on the ground of any alleged irregularity
of procedure.
(2) No officer or other member of a Provincial Legislature in whom
powers are vested by or under this Act for regulating procedure or the
conduct of business, or for maintaining order, in the Legislature shall be
subject to the jurisdiction of any court in respect of the exercise by him
of those powers.
21. Language: In the Provincial Legislature, business shall be transacted
in the Provincial language or languages or in Hindustani (Hindi or
Urdu) or in English. The Chairman (where there is an Upper House) or
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612
the Speaker, as the case may be, shall make arrangements for giving the
House, where he thinks fit, a summary of the speech in a language other
than that used by the member and such summary shall be included in the
record of the proceedings of the House.
22. Franchise for the Provincial Legislature: For the first election of
the Provincial Legislature under this Constitution, the constituencies, quali¬
fications of voters and other particulars shall be such as may be prescribed
in the Schedule to this Constitution.
The Provincial Legislature may from time to time, in accordance with
the procedure for amending the Provincial Constitution, make provisions
with respect to all or any of the following matters, that is to say—
(a) the delimitation of territorial constituencies;
(b) limitations to adult franchise on grounds of non-residence or per¬
sonal disabilities not based on birth, race, religion or community,
and the preparation of electoral rolls;
(c) the qualifications for being elected as a member of either House;
(d) the filling of casual vacancies in either House;
(e) the conduct of elections under this Constitution and the methods
of voting thereat;
(f) the expenses of candidates at such elections:
(g) corrupt practices and other offences at or in connection with such
elections;
(h) the decision of doubts and disputes arising out of or in connection
with such elections;
(i) matters ancillary to any such matter as aforesaid:
Provided—
(1) that no member of the Lower House shall be less than twenty-five
years of age and no member of the Upper House shall be less than
thirty-five years of age;
(2) that all provisions under clause 22 (a) to (i) will be made on the
principles and in conformity with the instructions laid down in the
schedule annexed hereto so as to maintain uniformity in these
matters throughout the Indian Union.
Chapter III
Legislative Powers of the Governor
23. (1) If at any time when the Provincial Legislature is not in
session, the Governor is satisfied that circumstances exist which render it
necessary for him to take immediate action, he may promulgate such Ordi¬
nances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this clause shall have the same
force and effect as an Act of the Provincial Legislature assented to by the
Governor, but every such Ordinance—
(a) shall be laid before the Provincial Legislature and shall cease to
operate at the expiration of six weeks from the reassembly of the
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673
Provincial Legislature, or if before the expiration of that period
resolutions disapproving it are passed by the Legislature, upon the
passing of the second of those resolutions; and
(b) may be withdrawn at any time by the Governor.
(3) If and in so far as an Ordinance under this clause makes any pro¬
vision which the Provincial Legislature would not under this Constitution
be competent to enact, it shall be void.
[Note: The Ordinance-making power has been the subject of great criticism
under the present Constitution. It must however be pointed out that circumstances
may exist where the immediate promulgation of a law is absolutely necessary and
there is no time in which to summon the Provincial Legislature. In 1925, Lord
Reading found it necessary to make an Ordinance abolishing the cotton excise duty
when such action was immediately and imperatively required in the interests of the
country. The Governor who is elected by the people and who has normally to
act on the advice of Ministers responsible to the Legislature is not at all likely to
abuse any Ordinance-making power with which he may be invested. Hence the
proposed provision.]
24. The Governor of a Province in which the Legislature consists of a
single chamber shall have the right to return at his discretion a Bill passed
by the Legislature for reconsideration and may suggest amendments. If the
Bill is passed again by the Legislature with or without amendments, he
shall assent to it.
Chapter IV
Excluded and Partially Excluded Areas
[The provisions of this chapter cannot be framed until the Advisory
Committee has reported.]
Part II
THE PROVINCIAL JUDICIARY
1. The provisions of the Government of India Act, 1935, relating to
the High Court should be adopted mutatis mutandis; but judges should
be appointed by the President of the Federation in consultation with the
Chief Justice of the Supreme Court, the Governor of the Province and the
Chief Justice of the High Court of the Province (except when the Chief
Justice of the High Court himself is to be appointed):
Provided that—
(a) all the High Courts in the Union of India shall have right to issue
prerogative writs or any substituted remedies therefor throughout
the area subject to the appellate jurisdiction;
(b) the restriction as to jurisdiction in revenue matters referred to in
section 226 of the Government of India Act, 1935, shall no longer
apply to the High Courts; and
(c) in addition to the powers enumerated in section 224 of the Gov¬
ernment of India Act, 1935, the High Courts shall have powers of
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FRAMING OF INDIA’S CONSTITUTION
superintendence over subordinate courts as under section 107 of the
Government of India Act, 1915.
2. The judges of the High Court shall receive such emoluments and
allowances as may be determined by Act of the Provincial Legislature
and until then such as are prescribed in Schedule...
3. The emoluments and allowances of the judges shall not be dimi¬
nished during their term of office.
Part III
PROVINCIAL PUBLIC SERVICE COMMISSION AND PROVINCIAL
AUDITOR-GENERAL
Provisions regarding Public Service Commissions and Auditors-General
should be inserted on the lines of the provisions of the Act of 1935.
The appointment of the Chairman and the members of each Provincial
Public Service Commission and of the Auditor-General should be vested
in the Governor in his discretion.
Part IV
TRANSITIONAL PROVISIONS
1. Any person holding office as Governor in any province immediately
before the commencement of this Constitution may be continued as such
and when so continued shall bs deemed to be the Governor of the Province
under this Constitution until a successor, duly elected under this Constitu¬
tion, assumes office.
2. There should be similar provisions, mutatis mutandis, in respect of
the Council of Ministers, the Legislative Assembly and the Legislative
Council (in Provinces which decide to have an Upper House).
[Note: These provisions are necessary in order that there may be a Legislature
and a Government ready to take over power in each Province as soon as this
Constitution comes into force.]
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PART FIVB
CITIZENSHIP
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AD HOC COMMITTEE ON CITIZENSHIP
May-July 1947
[The citizenship clause—clause 3—in the Annexure to the Interim
Report of the Advisory Committee on Fundamental Rights [sec Docu¬
ment No. 7(i )] came up before the Constituent Assembly on April
29, 1947. It evoked keen controversy; some members felt that it was
so widely worded as to confer citizenship on every person born in
India whether his parents were Indian citizens or not. The
Assembly decided to refer the matter to a small committee of dis¬
tinguished jurists for advice. Accordingly, on April 30, the President
of the Constituent Assembly appointed an ad hoc committee consist¬
ing of S. Varadachariar . Bakshi Tek Chand, B. L. Mitter, Alladi Krishna-
swami Ayyar, K. N. Katju, K. M. Munshi and B. R. Ambedkar.
The report of the committee submitted on May 1 was considered by
the Assembly the next day. But the citizenship clause, even as redrafted,
was regarded as having failed to meet the requirements of the situa¬
tion inasmuch as it covered only persons born after the Union came
into being. The clause was held over for reconsideration by the ad
hoc committee.
In his memorandum on the Union Constitution issued on May 30
[see Document No. 15(H)], B. N. Rau removed the citizenship provi¬
sions from the list of fundamental rights and placed them in a separate
part. Meanwhile, the Union and the Provincial Constitution Com¬
mittees at their joint sitting on June 5 (see Document No. 19), ap¬
pointed a sub-committee to consider in detail the effect of the 'June 3
Plan* [see vol. I, Document No. 85( /)]. The joint sub-committee
met on June 8 (see Document No. 20) and decided that the question
of nationality and citizenship in the Union should be reexamined
by the ad hoc committee in the light of the Plan. The Union Cons¬
titution Committee in its report of July 4 [see Document No. 18(f)],
merely stated that Part II relating to citizenship was subject to the
decision of the ad hoc committee. The committee met on July 12
and redrafted the Part. The redraft was considered by the Union and
the Provincial Constitution Committees at a joint meeting held on
July 18 (see Document No. 19) and it was decided to postpone,
consideration till the October session of the Assembly.
The Report of the ad hoc committee (May 1947), the notes submit¬
ted to the committee and the minutes of the meeting of July 12 are
reproduced below J
44
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FRAMING OF INDIA’S CONSTITUTION
(I) REPORT OF THE AD HOC COMMITTEE
May 1, 1947
We have, after full consideration, redrafted the clause relating to
citizenship thus:
Every person born in the Union and subject to its jurisdiction; every
person either of whose parents was, at the time of such person’s birth,
a citizen of the Union; and every person naturalised in the Union
shall be a citizen of the Union.
Further provision regarding the acquisition and termination of Union citi¬
zenship may be made by the law of the Union.
The inclusion in the clause of children born in the Union even of
non-citizens, provided they are subject to Union jurisdiction, is a well-
marked feature of Anglo-American public law. This principle has been
accepted in the Indian Naturalization Act, 1926. There is some authority
for the view that the children of visiting foreigners are on the same footing
as the children of foreign ambassadors and would as such be regarded
as non-citizens even if bom in the Union because of the qualifying phrase
“and subject to its jurisdiction”. In any event, such cases are likely to
be so few and far between that it is unnecessary in our opinion to make
a special exception to exclude them from citizenship. As regards the possi¬
bility of double nationality, this is a well-known phenomenon, but it can
be provided against by appropriate provisions in the Union Naturalization
Law calling upon the person concerned to choose one or the other. For
this purpose, the clause makes express provision for supplementary legislation
ter minating citizenship. We recommend that the clause as redrafted by us
be adopted.
S. Varadachariar.
Tek Chand.
B. L. Mitter.
A. Krishnaswami Ayyar.
K. N. Katju.
B. R. Ambedkar.
K. M. Munshi.
(II) NOTES SUBMITTED TO THE AD HOC COMMITTEE
A. NOTE ON CITIZENSHIP CLAUSE BY D. P. KHAITAN
In the definition of citizenship, I think, it should include that a woman
on being married to a citizen of India will automatically become such a
citizen. I think generally, it is the law in other countries also. But
whether that be so or not, on India having been partitioned, I can visualise
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679
that there will be a large number erf marriages between citizens of India
and citizen of Pakistan. It may be argued that the wife may be natura¬
lized. But the point applies to lakhs of people, most of whom would be
illiterate and most others will not have the knowledge as to what citizenship
implies and the disqualifications attaching to foreigners, and will further
be too lazy to undergo the procedure of naturalization. Further, it would
apply to lakhs of people at present inhabiting, e.g.. West Bengal, and the
wives coming from East Bengal. The point also applies to marriages
between citizens of India and citizens of Indian States.
As the law is being drafted at present, it is, in my opinion, necessary
that this point be cleared up in order that Hindustan may not be full of,
what would legally be, foreign women.
R. NOTE ON DOMICILE AND NATIONALITY BY DHIREN MITRA
June 28, 1947
Law ascribes to each individual at his birth two legal status or con¬
ditions
(a) by virtue of which he becomes the subject of some particular country
binding him by the tie of national allegiance. This is his political
status of nationality;
(b) the other status is his domicile which is a means of connection with
a territorial legal system.
2. In connection with the proposed partition, two questions have to
be considered and the consideration thereof cannot conveniently be left to
the Constituent Assemblies of the two Dominions, namely, the question of
nationality in so far as it has a bearing on a man’s employment in the public
service and his status abroad.
3. At the present moment, nationality in British India is governed by
the British Nationality and Status of Aliens Act, 1914, and, in a very
limited number of cases, by the Indian Naturalization Act, which may be
ignored. Section 1 describes persons who shall be deemed to be natural
bom British subjects:
(a) any person bom within His Majesty’s Dominions or allegiance;
(b) any person bom out of His Majesty’s Dominions whose father was
at the time of that person’s birth a British subject, and who fulfils
any of the following conditions, that is to say, if either—
(i) his father was bora within His Majesty’s allegiance; or
(ii) his father was a person to whom a certificate of naturalization
had been granted ; or
(iii) his father had become a British subject by reason of any annexa¬
tion of territory; or
(iv) his father was at the time of that person’s birth in the service
of the Crown.
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FRAMING OF INDIA’S CONSTITUTION
4. The legal position will not ipso facto be altered as a result of Par¬
liamentary legislation. Under section 262, sub-section (3), of the Govern¬
ment of India Act, 1935, it is laid down that no person who is not a
British subject shall be eligible to hold any office under the Crown in
India, provided:
(a) that a person who at the end of March 1940 is in the permanent
service of the Crown in India shall not be ineligible to hold any
office under the Crown in any of the Dominions by reason that he
is not a British subject;
(b) that the Governor-General, or in the case of a Province the
Governor, may authorise a temporary employment for any purpose
of a person who is not a British subject
If the provision is allowed to stand as it is, there would be nothing to
prevent a British subject ordinarily inhabiting or domiciled in Pakistan
from being employed in India and vice versa.
5. If, on the other hand, it is considered desirable that the British
subjects domiciled in one Dominion should not be eligible for public ser¬
vice in the other Dominion, the above-mentioned provision of section 262
will have to be adapted as follows:
No person who is not a British subject and is not domiciled in India/
Pakistan shall be eligible to hold any office under the Crown in India/
Pakistan;
and in order to protect officers already in the service of the Crown on the
appointed day, proviso (a) to that sub-section should also be adapted so
as to read:
Provided that a person who on the appointed day is in the permanent
service of the Crown in India shall not be ineligible to hold any office
under the Crown in any of the Dominions by reason that he is not domi¬
ciled in that Dominion.
6. As regards the rights of Indians abroad, partition by itself will make
no difference. They are British subjects holding British passports and
will continue to be so.
7. Under the Parliamentary statute effecting partition and conferring
Dominion Status, a Dominion will be entitled to amend the British Nationa¬
lity and Status of Aliens Act in its application to the Dominion. Such
amendments have been made by Canada, Australia, New Zealand and
South Africa. The amendments, however, have not taken away the status
of British subjects from Canadians, Australians, New Zealanders and
South Africans. “Thus, (subject to the remarks which follow with regard
to Eire) British nationality throughout the Commonwealth was governed
by the British Nationality and Status of Aliens Act, 1914, as amended by
Parliamentary legislation and by the corresponding Acts in force in Canada,
Australia, New Zealand, and South Africa.” “The United Kingdom,
Canada, Australia, New Zealand, and South Africa all had statutes which
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AD HOC COMMITTEE ON CITIZENSHIP
<581
defined who were British subjects and the conditions under which the status
of a British subject could be acquired and lost With some exceptions all
these statutes were mutatis mutandis identical and applied to all parts of
His Majesty’s Dominions. Thus, all British subjects had a common status
which was recognised by the identical statutes of different parts of file
Commonwealth, and these statutes may be referred to as constituting the
common code.”
8. Eire has taken a line of her own. Provisions defining Irish citizens
were enacted in the Constitution of the Irish Free State of 1922; and file
Irish Nationality and Citizenship Act, 1935, defined in detail Irish citizen¬
ship. This Act repealed, so far as Eire was concerned, all the existing
British nationality law. Thus, Eire did not accept file common status
or the position that its citizens were British subjects. This statute has
effect only in Ireland. The resulting legal position is that, though an Irish
citizen is not a British subject in Eire, he is a British subject vis-a-vis the
United Kingdom and other parts of the British Commonwealth and in
foreign countries bound by treaty with the United Kingdom. The Irish
citizen is described in his passport as “a citizen erf the Irish Free State
and a citizen of the British Commonwealth of Nations”. Thus, British
nationality throughout the Commonwealth, excepting Eire, is governed by
the British Nationality and Status of Aliens Act, 1914, as amended by the
British Nationality and Status of Aliens Act, 1918 or by the corresponding
Acts in force in Canada, Australia, New Zealand and South Africa.
9. A conference of experts was recently held in London. It was
called the British Commonwealth Conference on Nationality and Citizen¬
ship. The occasion for the conference was the passing of the Canadian
Citizenship Act, 1946, which provided for the acquisition and loss of
Canadian citizenship following, with certain modifications, the principles
of the former statutes with regard to British nationality and also affirmed
that all Canadian citizens were British subjects and that all persons who
were British subjects by law of any other part of the Commonwealth should
be recognised as British subjects in Canada though not as Canadian citizens.
10. These questions as to whether the recommendations of the con¬
ference are to be followed or whether the Irish precedent is to be followed
as also the qualification of voters and persons standing for election in the
Dominions are questions which will fall to be considered by the Constituent
Assemblies of the Dominions concerned. Partition by itself will effect no
change in nationality and calls for no immediate action by the Partition
Committee except in regard to the public service as indicated in
paragraph 5 above, if it is desired to restrict entry into the public service in
the manner therein indicated, but not otherwise.
11. Part II of the Indian Succession Act, 1925, which deals with domi¬
cile, does not apply proprio vigore to Hindus, Muslims. Buddhists* Sikhs
or Jains, but it lays down in a convenient form the bearing of a question
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FRAMING OF INDIA’S CONSTITUTION
of domicils on the rights of an individual. The domicile of an individual
is material as governing his succession to moveable property and his
marriage and divorce. These are of no importance as Hindus and Muslims
are governed by their own personal laws. As to whether the Constituent
Assemblies will accept domicile or habitual residence or some other test
for voters or persons standing for election is a matter for the Constituent
Assemblies.
C. NOTE BY GHANASHYAM J. SHIVDASANI
June 30. 1947
With the division of India into Hindustan and Pakistan, the question
of citizenship has been agitating the minds of several people. So far we
were citizens of one country, viz., India; and our loyalty was to that coun¬
try. Now a question is being put by those living in the seceding areas
as to what will become of their citizenship. After the 1914-18 World War
new States came into existence with new geographical boundaries. Those
who were forcibly separated from their mother country and joined to a
new country were given an option either to accept the citizenship of the
new State or to regard themselves as citizens of their original mother coun¬
try. In the latter case they were asked to remove themselves from the new
country to which they had been joined. Some time limit was fixed during
which this had to be done. Will such an option be given to people living
in seceded areas? Several of them wish to continue their Indian
citizenship.
In case such an option is given and a person decides to continue his
Indian citizenship, will it be necessary for him to leave Pakistan? Can he
not continue to stay there as an alien? If he is allowed to remain as alien,
what will be his rights? Whether he will be allowed to hold immovable
property there?
(m) MINUTES OF THE MEETING OF THE AD HOC COMMITTEE
July 12, 1947
Present: (1) The Hoo’ble Dr. Rajendra Prasad; (2) Sir B. L. Mitter;
(3) Sir Alladi Krishnaswami Ayyar; (4) Mr. K. M. Munshi; (5) Dr. B. R.
Ambedkar.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr.
H. V. R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Joint Secretary; (4)
Mr. B. F. H. B. Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna,
Deputy Secretary.
After discussion, the following conclusions were readied by the com¬
mittee, namely:
(1) In clause 1 of Part U (relating to dtizenship) of the memorandum on
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AD HOC COMMITTEE ON CITIZENSHIP
683
the Indian Constitution, the portion commencing with the words M every per¬
son domiciled” and ending with the words “born in India” should be
replaced by the following, namely,—
Every person.
(a) who, or whose parents, or either of whose parents, was or were
born in the territories of the Federation and subject to its jurisdic¬
tion, or
(b) who is domiciled in the territories subject to the jurisdiction of
the Federation”
(2) In the Explanation to clause 1, it should be made clear that for
the purposes of that clause “domicile” has the same meaning as in the
Indian Succession Act, 1925, subject to the modification that in section 11
of the Act the period of one year should be reduced to three months.
(3) Clause 2 of die said Part was agreed to.
(4) In clause 3 erf the said Part, after the words “termination of Federal
Citizenship” the words “and avoidance of double citizenship” should be
inserted.
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PART SIX
DISTRIBUTION OF POWERS
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PRELIMINARY NOTES ON UNION SUBJECTS ISSUED
BY THE CONSTITUTIONAL ADVISER
September 1946
[The Cabinet Mission's Plan [sec vol. /, Document No. 48(f)] had
provided that the Union of India should deal with Foreign Affairs ,
Defence and Communications and should have the powers necessary
to raise the finances required for these subjects. All subjects other
than Union subjects and all residuary powers were to vest in the Pro¬
vinces. The Princely States were to retain all subjects and powers
other than those ceded to the Union. An attempt in the direction of
analyzing the precise content and scope of the Union subjects as
well as the Union's power to raise finances was first made by the Cons¬
titutional Adviser . B. N. Rau, in the two notes prepared by him for
the use of the members of the Constituent Assembly. The notes were
issued on September 2, 1946 as part of “Constitutional Precedents
(First Series )” and circulated to the members of the Assembly. The
texts of the notes are reproduced below.]
UNION SUBJECTS (i)
Paragraph 15(1) of the Cabinet Delegation’s Statement, dated May 16,
1946 recommends that there should be a Union of India which should deal
with the subjects of Foreign Affairs. Defence and Communications. The
precise content of each of these categories has not been defined and ques¬
tions will doubtless arise on this point in the course of the proceedings
of the Constituent Assembly. The following references may be useful:
Ambit of “Foreign Affairs”
The plain dictionary meaning of “foreign”: “Dealing with matters con¬
cerning other countries”. (New Oxford English Dictionary .)
The sense in which the term has been used in Empire Constitutions:
(1) Section 51 (mix) of the Australian Constitution: “External Affairs”.
—See Dr. Wynes* Legislative and Executive Powers in Australia, 1936. pp.
205—222; also Quick and Garran’s commentary on the section. These
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authors agree that “External Affairs” as used in the section extends to
(i) the external representation of Australia by accredited agents; (ii) the
conduct of the business and promotion of the interests of Australia in out¬
side countries ; and (iii) extradition.
(2) Entry 3 of List I in the Seventh Schedule to the Government of
India Act, 1935, runs: “External Affairs; implementing of treaties and
agreements with other countries; extradition, including the surrender of
criminals and accused persons to parts of His Majesty’s do mini ons outside
India.”
The items following “external affairs” in this entry are, it may be con¬
tended, illustrative of what constitutes “external affairs”. But are they
exhaustive? For example, take immigration and emigration, or naturalisation.
Both in the Australian Constitution, and in the Government of India Act
of 1935, these subjects are mentioned separately from “external affairs”.
[Section 51 (xxvii) and fxix) of the Australian Constitution and entries 17
and 49 of List I in the Seventh Schedule to the Government of India Act,
1935.] Does this necessarily imply that these subjects are not included in
“external affairs”? Note in this connection that “the relations of the
Commonwealth with the islands of the Pacific” is also separately enumerated
in the Australian Constitution [section 51 (xxx)], although this is obviously
“external affairs”, which shows that the enumerations are not always
mutually exclusive. Note further that the Foreign Office in England deals
not only with treaties and extradition, but also, inter alia, with nationality,
naturalisation, prize courts, territorial waters, deportations, passports and
visas. [The Foreign Office by Sir John Tilley and Stephen Gaselee, 1933,
p. 287.] In nationality cases, the Foreign Office works very closely with the
Home Office (op. dt., p. 291). As will be pointed out presently, administra¬
tive practice may be relevant in this matter.
To what extent can foreign trade and commerce be said to be com¬
prised in “foreign affairs”? English practice in this respect which we may
note for our guidance, is as follows:
The general relations of the United Kingdom with foreign countries,
in which economic questions play an important part, are a special respon¬
sibility of the Foreign Office; the trading interest of the United Kingdom
is a special responsibility of the Board of Trade; the financial position of
the United Kingdom in relation to foreign countries is a special responsibi¬
lity of the Treasury. Ultimate responsibility for any matter of major policy
is that of His Majesty’s Ministers collectively. This is particularly relevant
in questions which involve two or more departments of Government.
The formulation of commercial policy towards foreign countries and
the conduct of trade negotiations with other Governments are thus primarily
the responsibility of the Board of Trade (Commercial Relations and Treaties
Department). In addition to sections dealing with general matters, this
Department has a number of officers who devote their time to particular
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689
countries or groups of countries. They keep in close touch with the
relevant geographical and economic departments of the Foreign Office in
order to ensure that commercial policy is in line with general foreign policy
and also with the Treasury, who have an Overseas Finance Department,
which, like the Commercial Relations and Treaties Department, contains
geographical sections with respect to financial questions.
The Foreign Office contains both geographical and general economic
departments which are organised to handle economic questions according
to whether they are susceptible of being dealt with on a purely geographical
basis or are of a more general character. The Foreign Office departments
concerned always consult with the Commercial Relations and Treaties
Department of the Board of Trade on matters of commercial concern, and
the Overseas Finance Department of the Treasury where financial questions
are involved.
There are also a number of other departments (for instance. Food,
Civil Aviation, and Fuel and Power) which are associated in their respective
spheres with the three departments principally concerned in the formulation
of economic policy towards foreign countries.
Thus, there exists, for each country or group of countries, a team of
officers in the Foreign Office, Board of Trade and Treasury (and also
in other departments as necessary) who are experts in the general, com¬
mercial and financial aspects respectively of our relations with foreign
countries. The members of this team work closely together and are in
constant touch with each other by correspondence, telephone and meetings.
These three departments thus all {day their part in framing policy and
make their contribution with respect to their particular sphere of operation.
Mention must also be made of the work of the Export Promotion
Department of the Board of Trade. This has taken the place of the Depart¬
ment of Overseas Trade which was jointly responsible to the Foreign
Office and the Board of Trade. As its name indicates, the emphasis of the
work of this Department is primarily on the urgent need to expand
exports from the United Kingdom. Consequently, the Export Promotion
Department is mainly in contact with the individual traders at home or
overseas who are engaged in the actual work of export, rather than with
other Government departments. But in addition to these activities it is also
responsible for providing the policy-making departments with the econo¬
mic, commercial and, in many cases, financial data on which policy
decisions can be based.
Economic work in foreign countries is conducted through the Com¬
mercial Secretaries of United Kingdom Missions abroad, who are respon¬
sible to the Foreign Office and are members of the Foreign Service. These
officers are the chief sources of intelligence On economic developments in
foreign countries and they serve for this purpose the Export Promotion
Department of the Board Trade. At the same time, these Commercial
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Secretaries are responsible for handling trade questions, as defined in para¬
graph 2, with the Governments to which they are accredited, under instruc¬
tions from the Commercial Relations and Treaties Department of the
Board of Trade.
The allocation of responsibility for commercial relations with Canada,
Australia, New Zealand, South Africa and Eire follows a similar pattern
with the difference that the Dominions Office and not the Foreign Office
is generally responsible for relations with those countries. The Trade
Commissioners stationed in the British Commonwealth, unlike the Com¬
mercial Secretaries in foreign countries, are primarily responsible to the
Board of Trade. But, in the countries mentioned, the Senior Trade Com¬
missioner is in each case also the Economic Adviser to the United Kingdom
High Commissioner (or Representative) and thus keeps in touch, through
the latter, with the Dominions Office.
How far is administrative practice a legitimate criterion in these matters?
In Croft v. Dunphy, [1933] A. C. 156, 165, the Privy Council observed:
“When a power is conferred to legislate on a particular topic, it is important,
in determining the scope of the power, to have regard to what is ordinarily
treated as embraced within that topic in legislative practice and particularly
in the legislative practice of the State which has conferred the power.” By
analogy, a power to “deal with” a certain topic must be similarly construed
in the light of administrative practice. And since the power in the present
case may be said to be conferred by the Cabinet Delegation’s statement, it is
the administrative practice of the United Kingdom that is particularly
relevant.
Can the Union utilise the treaty making power given to it by the cate¬
gory “foreign affairs” for the purpose, say, of enforcing a forty-hour week
in selected Indian industries, “conditions of labour” being assumed to be
a Provincial subject? Dr. Wynes answers a similar question under the
Australian Constitution in the affirmative [Legislative and Executive Powers
in Australia, 1936, p. 209]; but he wrote before the Privy Council’s decision
in Attorney-General for Canada v. Attorney-General for Ontario and
others, (1937) A. C. p. 326. In this case, the Privy Council ruled as invalid
certain Acts of the Canadian Parliament regulating conditions of labour
in various ways, as the legislation related to a Provincial subject, although
it was sought to be justified on the ground that it was required to give
effect to certain international conventions which had been ratified by the
Dominion of Canada.
The Dominion cannot, merely by making promises to foreign countries,
clothe itself with legislative authority inconsistent with the Constitution
which gave it birth... It must not be thought that the result of this
decision is that Canada is incompetent to legislate in performance of treaty
obligations. In totality of legislative powers, Dominion and Provincial
together, she is fully equipped. But the legislative powers remain distributed
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691
and if, in the exercise of her new functions derived from her new
international status, Canada incurs obligations, they must, so far as legis¬
lation is concerned, when they deal with Provincial classes of subjects,
be dealt with by co-operation between the Dominion and the Provinces.
. It is interesting to note that the existing provision on this point in
the Government of India Act, 1935, follows a similar view .—See section
106(1): “The Federal Legislature shall not, by reason only erf the entry
in the Federal Legislative List relating to the implementing of treaties and
agreements with other countries, have power to make any law for any
Province except with the previous consent of the Governor.”
The American case. The United States of America v. Curtiss-Wright
Export Corporation, (reported in 299 U. S.—304—333) contains a useful dis¬
cussion of the “foreign relations” power in the United States. The point
of interest is that in certain circumstances a penal tariff or even a total
prohibition of the import of goods may come within its ambit. For exam¬
ple, if a foreign countiy discriminates against the nationals or the goods
of the Indian Union, the Union may, in the discharge of its functions in
relation to foreign affairs, retaliate either by prescribing a penal duty on
the import of the goods of that country or by prohibiting their import
altogether. [See footnote at p. 324 of the above report.] In certain circum¬
stances, therefore, the “foreign affairs” power may include powers in
relation to the import of goods from a foreign countiy, although normally
the powers may be distinct.
It may be useful to note the classes erf external matters, whether des¬
cribed as foreign or external affairs or not, which are dealt with by the
Centre in various constitutions:
THE UNITED STATES OF AMERICA
Article 1, section 8: The Congress shall have power...to regulate
commerce with foreign nations...; to establish an uniform rule of naturali¬
zation... ; to regulate the value...of foreign coin...; to define and punish
piracies and felonies committed on the high seas, and offences against the
jaw of nations; to declare war...; and to make all laws, which shall
be necessary and proper for carrying into execution the foregoing
powers...
Section 9: The migration or importation of such persons as any erf
the States now existing shall think proper to admit shall not be prohibited
by the Congress prior to the year 1808, but a tax or duty may be imposed
on such importation not exceeding ten dollars for each person.
CANADA
The Canadian Parliament has power to make laws for the peace, order
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and good government of Canada in relation to all matters not coming with*
in the classes of subjects assigned exclusively to the Legislatures of the
Provinces. No aspect of foreign affairs is assigned to the Provincial Legis¬
latures. On the other hand, for greater certainty and without prejudice to
the generality of the residuary powers of the Canadian Parliament, the
following powers have been expressly conferred exclusively on the Parlia¬
ment of Canada: “The regulation erf trade and commerce; and naturalization
and aliens.”
(See section 91. entries 2 and 25.)
AUSTRALIA
The Commonwealth Parliament has power to make laws with respect
to:
Trade and commerce with other countries, naturalization and aliens, foreign
corporations, immigration and emigration, external affairs, the relations
of the Commonwealth with the islands of the Pacific, and matters incidental
to the execution of any of these powers.
[See section 51, items (i). (xix), (xx), (xxvii), (xxix), (xxx) and (xxxix).]
SOUTH AFRICA
The Union Parliament has full power to make laws for the peace, order
and good government of the Union; in other words, it has plenary powers
in respect of all subjects. (See section 59 erf the Union Constitution.)
INDIA
Under the Government of India Act, 1935, the Federal Legislative
List comprises:
Preventive detention for reasons of State connected with external affairs:
external affairs; the implementing of treaties and agreements with other
countries; extradition; admission into, and emigration and expulsion from,
India; pilgrimages to places beyond India; import and export across customs
frontiers; admiralty jurisdiction; and naturalization.
(See entries 1, 3, 17, 19, 21, and 49 in List I of the Seventh Schedule to
the Act.)
AUSTRIA-HUNGARY
Under the Compact of 1867, the following subjects wsre declared to
be common to the two halves of the dual monarchy: “Foreign affairs,
including diplomatic and commercial agencies vis-a-vis foreign countries”
but the ratification of treaties, so far as it was constitutionally required,
was reserved to the two separate Parliaments.
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Among subjects which were not common, but were to be dealt with
according to principles agreed upon from time to time, were:
Commercial affairs, and especially the tariff; indirect taxes affecting in¬
dustrial production; money and coinage; and the military system.
These subjects, most of which, in other federations, fall within the
province of the Central Legislature, were regulated in the dual monarchy
by concurrent statutes of the two Parliaments and thus nearly everything
in the nature of positive law had to be enacted separately in Austria and
Hungary.
C See Lowell’s Governments and Parties in Continental Europe, 1917,
vol. H, pp. 162—179.)
SWITZERLAND
Article 8: The Confederation alone has the right to declare war and
to make peace as well as to conclude alliances and treaties with foreign
States, especially customs arrangements and commercial treaties.
Article 9: In exceptional cases, the cantons retain the right to con¬
clude treaties with foreign States on matters concerning public economy
and neighbourhood and polioe relations; however, such treaties shall con¬
tain nothing contrary to the Confederation and to the rights of other
cantons.*
Article 10: The official relations between the cantons and foreign
governments or their representatives shall take place through the medium
of the Federal Council.
However, the cantons may correspond directly with the subordinate
authorities and agents of a foreign State when dealing with the matters
mentioned in the preceding article.
Article 69(a): ...The Confederation is responsible for the control of
imports on the national frontier.
Article 69(b): The Confederation has the right to legislate on foreigners
entering and leaving the country and on their sojourn and establishment
within it.
The cantons shall, in accordance with federal law, decide on the
sojourn and establishment of foreigners. However, the Confederation has
the right to decide in final appeal:
(a) on cantonal authorization of prolonged sojourn and establishment,
as well as on favours granted in this connection,
(b) on the violation of treaties of establishment,
(c) on cantonal expulsions when they have repercussions on the terri¬
tory of the Confederation,
*For instance, if the canton of Ticino concludes a treaty with Italy for furnishing
salt, this does not affect the Confederation. (See The Swiss Confederation by
Adams and Cunningham, 1889, p. 30, footnote.)
45
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(d) on the refusal of the right of asylum.
Article 70; The Confederation has the right to expel from its territory
the foreigners who jeopardize the interior or exterior security of Switzer¬
land.
U.S.S.R.
Article 14: The jurisdiction of the Union of Soviet Socialist Republics,
as represented by its higher organs of state power and organs of state
administration, embraces—
(a) representation of the U.S.S.R. in international relations, conclusion,
ratification and denunciation erf treaties of the U.S.S.R. with other
states, establishment of general procedure governing the relations of
Union Republic with foreign states;
(b) questions of war and peace;
* * *
(h) foreign trade on the basis of state monopoly;
• * *
(v) ...legislation concerning rights of foreigners.
Ambit of Defence Power
1. See the Report of the Joint Committee on Indian Constitutional
Reform, vol. I, para 238: “Apart from a considerable revision of the
language of the first five entries of List I. as they appear in the White
Paper, which collectively define the ambit of the reserved subject of
defence, ...” From this it follows that in the opinion of the Joint Com¬
mittee the first five entries of List I of the White Paper collectively define
the ambit of “defence”. The White Paper in question is printed as Appendix
VI to the Report and it will be seen that the first five entries of List I of that
Paper are equivalent to entries 1 and 2 of List I in the Seventh Schedule
to the Act of 1935 plus “the common defence of India in time of an
emergency declared by the Governor-General” plus “the employment of the
armed forces of His Majesty for the defence erf the Provinces against internal
disturbance and for the execution and maintenance of the laws of the
Federation and the Provinces.” The defence erf India in a declared emergency
is now provided for in section 102 of the Act of 1935.
2. See the Australian Bread case, 21 C. L. R. 433 (Farey v. Burvett),
in which the validity of a war time Regulation was held valid by a majority
of 5 to 2. Isaacs J. held that “defence” included everything in relation to
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695
national defence that the Commonwealth Parliament might deem advisable
to enact, (p.455.) Griffith C. J.: “The word ‘defence’ of itself includes all
acts of such a kind as may be done in the United Kingdom either under
the authority of Parliament or under the Royal Prerogative for the purpose
of the defence of the realm... It includes preparation for war in
time of peace and any such action in time of war as may conduce to the
successful prosecution of the war and defeat of the enemy.” (Ibid, p.
440.)
3. Note that in Australia the entry in section 51(vi) of the Common¬
wealth Constitution relates to the “naval and military defence” of the
Commonwealth. Hence the dissentient judgment in the above case that
price-fixing was outside Commonwealth powers.
4. See Dr. Wynes’ Legislative and Executive Powers in Australia,
pp.178—190, where the author discusses a large number of reported cases
bearing on the subject of defence.
5. It has been held in Australia—
(a) that it is not competent for the Commonwealth Parliament under
its defence power to set up manufacturing or engineering businesses
for general commercial purposes in peace-time merely because such
activities may conduce to the works of a department of the defence
administration. [Commonwealth v. Australian Shipping Board, (1926)
39 C. L. R. 1.];
(b) but that, it is competent for a Comm cm wealth clothing factory
created essentially for defence purposes to engage incidentally in
commercial transactions. [Attorney-General for Victoria v. The
Commonwealth, (1934-35) 52 C. L. R. 533.]
The latter decision has distinguished the former on the ground that
the Australian Shipping Board was not an organ of the Executive Govern¬
ment itself. The Commonwealth Clothing Factory, on the other hand,
had been established by the Commonwealth Government itself in 1911 for
the manufacture of naval and military equipment and uniforms. During
the War of 1914—1918, there was a large increase in the output of the
factory; at the end of the war, the demand for naval and military clothing
was very greatly reduced ; but, rather than reduce staff or plant, the factory
accepted orders from other Government departments and from public
bodies. The legality of this course was challenged at the instance of the
Victorian Chamber of Manufacturers. The High Court held in effect that
it was clearly “necessary for the efficient defence of the Commonwealth
to maintain intact the trained complement of the factory so as to be pre¬
pared to meet the demands which would inevitably be made upon the
factory in the event of war... It is obvious that the maintenance of a
factory to make naval and military equipment is within the field of legis¬
lative power. The method of its internal organisation in time of peace
is largely a matter for determination by those to whom is entrusted the
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FRAMING OF INDIA’S CONSTITUTION
sole responsibility for the conduct of naval and military defence. In parti¬
cular, the retention of all members of a specially trained and specially
efficient staff might well be considered necessary and it might well be
thought that the policy involved in such retention could not be effectively
carried out unless that staff was fully engaged. Consequently, the sales
of clothing to bodies outside the regular naval and military forces are not
to be regarded as the main or essential purpose of this part of the business
but as incidents in the maintenance for war purposes of an essential part
of the munitions branch of the defence arm. In such a matter, much must
be left to the discretion of the Governor-General and the responsible
Ministers.” (p. 558.)
6. In the United States of America the “war power” of the Congress
extends to “the raising and supporting of armies, the provision and main¬
tenance of a navy, the governance of the land and naval forces, and the
organizing and calling forth of the militia;” but the right of the people to
keep and bear arms is not to be infringed. In addition. Congress has of
course the power to make all laws necessary and proper for carrying into
execution the foregoing powers. (See article I, section 8, of the Constitution
of the United States of America.)
Writing in 1942, Dodd, in Cases on Constitutional Law (Shorter Selec¬
tion), says:
The participation of then United States in the World War (1917—1919) was
the occasion for a more extensive exercise of federal war powers than
ever before in our history, both as regards strictly military matters and
the incidental civil control of the energy and resources of the nation. No
Act of Congress was held invalid by the federal Supreme Court as outside
the war power, and only part of one—the Lever Act—for exercising a
war power in a forbidden way. (p. 338.)
For the almost limitless activities which may be undertaken in exercise
of the war power, see pp. 59 to 184 of the United States Government
Manual, 1945, First Edition, describing the “Council erf National Defence”
(formed under an Act of Congress in 1916, for the “co-ordination of indus¬
tries and resources for the national security and welfare” and “the creation
of relations which render possible in time of need the immediate concen¬
tration and utilization of the resources of the nation”) and the various
emergency war agencies set up during the last two world wars.
7. The following accounts (a) of the Austro-Hungarian defence sys¬
tem, and (b) of the Swiss defence system, taken respectively from Lowell’s
Governments and Parties in Continental Europe (pp. 171-172) and Govern¬
ments of Continental Europe, 1940, edited by James T. Shotwell (pp. 1028—
1030), may be of interest:
THE AUSTRO-HUNGARIAN DEFENCE SYSTEM
The next department of the joint administration is that of war, and
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here again is found the strange mixture of federal union and international
alliance that is characteristic of the relations of Austria and Hungary. The
regular army and the navy are institutions of the joint monarchy, although
they are governed by separate standing laws of the two States, which are,
of course, substantially identical. These laws determine, among other
(things, the number of the troops, and provide that the men shall be fur¬
nished by the two countries in proportion to population; but the contingent
of recruits required from each country is voted annually by its own Parlia-
tment. It is useless to inquire what would happen if either half of the
Empire should refuse to raise its quota of troops, for there is no possible
means of compulsion, and in this, as in most other cases, the smooth work¬
ing of the joint Government depends ultimately on a constant harmony
between the Cabinets of Vienna and Buda-Pesth. After the recruits are
enlisted they are under the control and in the pay of the joint administration
The Emperor, as Commander-in -Chief, appoints the officers, and regulates
the organization of the army. The Minister of War, curiously enough, is
not required to countersign acts of this nature,* but he is responsible for
all other matters, such as the commissariat, equipment, and military schools.
Besides the regular army, which belongs to the joint Government,
there are military bodies, called in Austria the Landwehr and in Hungary
the Honveds, which are special institutions of the separate halves of the
monarchy. These troops are composed of the recruits that are not needed
for the contingents to the regular army, and of the men who have already
served their time in it. They form a sort of reserve, but cannot be ordered
to march out of their own State without the permission of its Parliament;
except that in case of absolute necessity, when the Parliament is not in
session, the permission may be given by the Cabinet of the country to which
they belong. After such a permission has been granted, however, they are
subject to the orders of the General commanding the regular army. The
Landwehr and Honveds are organized under independent laws, which happen
to be very much alike but are not necessarily so, and their ordinary expenses
are borne entirely by the country to which they belong, only the increase of
cost arising from their actual use in war being defrayed out of the joint
treasury.
THE SWISS DEFENCB SYSTEM
National Defence: Unusual Features of the Army: For the defence
of their neutrality the Swiss rely not merely upon the pledges of other
States but also upon their own army and auxiliary air service. The Swiss
army differs quite remarkably from the prevailing continental military
systems. To be sure, like all her neighbours, Switzerland has adopted
•Law of December 21, 1867, sec. 5.
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universal and compulsory military service. Except for those exempted for
reason of physical or mental incapacity, who, incidentally, are required
to pay a military exemption tax, every Swiss citizen must begin his initial
period of army service during his nineteenth year. This initial period,
however, is not the two or even one year interval normally required of other
continental military recruits. The Swiss infantry recruit is called to the
colors for a period of approximately three months, during which he is
ithoroughly grounded in military essentials. At the end of this period he
is considered a full-fledged member of the army’s first-line troops, known
as the Auszug or Elite, and resumes his civilian activities. Recruits in
other branches of the service have similar training periods, ranging from
sixty days for the medical and supply corps to 102 days for the cavalry.
During the next twelve years the infantry recruit is called to the colors
annually for thirteen-day periods to repeat the courses of instruction he
received as a recruit and to supplement that instruction. From the end of
his thirty-second year until his forty-first, the Swiss soldier is enrolled in
the Landwehr or first reserve and from his forty-first year until his forty-
eighth, in the Landsturm or second reserve. During these sixteen years the
time actually spent with the colors in periods of peace is about two weeks.
Altogether, therefore, the formal training of the Swiss soldier throughout
his active affiliation with the army rarely exceeds seven or eight months.
It must be added that both before and during his military career the Swiss
infantry-man’s formal training is usually supplemented by practice in drill
and marksmanship in the various volunteer rifle clubs which dot the land
and receive active support from the public authorities. Recently, annual
practice in musketry under the jurisdiction of a rifle dub has been made
compulsory for all first-line and Landwehr troops.
Still another unusual feature of the Swiss military system is the absence
of a permanent professional military staff. No person can be appointed
to the rank erf Commander-in-Chief except in time of national emergency
when the Federal Assembly has decreed general mobilization; the
appointment, moreover, lapses as soon as the emergency has passed. A
Commander-in-Chief has beat appointed on four different occasions since
1848. The most recent appointment is that of Colonel Henri Guisan, who
took charge of the forces which the Confederation mobilized at the outbreak
of the European War in September, 1939. The only military officials in the
permanent service erf the federal Government are those engaged in staff
work in the Military department erf the Federal Council and those officers
and non-commissioned officers who instruct army recruits. Of these there
are at present about 300. The regular commissioned and non-commissioned
officers of the army are recruited from the ranks and, like the private
soldiers, are called upon only intermittently to serve with the colors after
their initial period of training and study; at other times they are engaged
in ordinary civilian pursuits.
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Dual Political Control: A third distinctive feature erf the Swiss army
system is the dual character of the political authority which has jurisdiction
over it. Although the current of constitutional reform since 1874 has run
strongly in the direction of centralizing military jurisdiction in the Govern¬
ment of the Confederation, the cantonal Governments still exercise many
military prerogatives. Within their respective territories they enforce most
of the federal military regulations, keep the military registers, call the
troops to the colors, and provide them with their personal equipment. They
also form the principal infantry units and appoint their non-commissioned
and commissioned officers, the latter up to the rank of captain. Military
powers are exercised by the cantonal authorities under the supervision and
with the approval of the federal Military department; and for at least a
portion of the expenditure they incur, the cantons are reimbursed by the
federal Government.
New Defence Measures: The Swiss military system provides an orga¬
nized and disciplined force of approximately 425,000 first and second-line
troops subject to mobilization during periods of national emergency. It is
a system well adapted to the nation’s democratic and federalistic political
institutions; and despite the strictures of certain Swiss politicians, there is
little evidence that the system inspires the militaristic influence commonly
associated with professional armies. Whether this system can provide
Switzerland with an adequate defence organization at a time like the pre¬
sent is another question. With neighbouring belligerent great powers but
poorly concealing irredentist and imperial ambitions which could quite logi¬
cally include Switzerland, and with offensive military weapons developed
to such a point that not even Switzerland’s peculiar topography any longer
affords a serious obstacle to invasion, this question has become a very
grave one. The Swiss themselves appear to be pondering it at length
and to have concluded that their defence needs strengthening. At any rate
the Federal Council, with the concurrence of a popular majority in a
referendum held in 1936, has taken steps to increase the period of active
training with the army, to supplement military aviation and artillery ser¬
vice, to perfect anti-aircraft defence and defence against gas attacks, and
to strengthen every variety of border fortification. Moreover, as long as
the period of national emergency, decreed at the end of August, 1939, con¬
tinues, the Swiss army, at least partially mobilized, will maintain a con¬
tinuous watch on the nation’s frontiers.
Ambit of “Communications”
1. “Communications” is a wide tom and, interpreted in the widest
possible sense, would include even village roads. Some such qualification
as “inter-unit” may have to be imported, if “communications” not extending
beyond the limits of a Province or State and not connected with
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FRAMING OF INDIA’S CONSTITUTION
any inter-unit line of communication are not to be dealt with by the
Union.
2. As to the detailed items which “communications” may include, see
in particular, entry 7 of List I and entry 18 of List II in the Seventh
Schedule to the Government of India Act, 1935. It is dear from the former
that posts and telegraphs, including telephones, wireless and broadcasting,
would be included under the existing Constitution as “forms of communica¬
tion.” The latter entry runs: “Communications, that is to say, roads, bridges,
ferries and other means of communication not specified in List I, ...”
The “means of communication” included in List I are mainly railways,
seaways, and airways. Seaports, being related to sea communications in
much the same way as railway stations are related to railways, would also
probably be included in the term “communications” and similarly lighthouses
and other safety devices for shipping and aircraft; so too, the carriage of
passengers and goods by rail or sea or air. Port quarantine can hardly be
dissociated from seaports or airports. Practically, therefore, entries 7, 18,
20, 21, 22, 24, 25 and 26 of List I in the Seventh Schedule to the Act of
1935 would be largely included in the term “communications”, even if we
limit it to inter-unit communications.
3. In Canada, besides the regulation of trade and commerce and the
postal service, the following enumerated subjects fall within the authority
of the Canadian Parliament:
Navigation and shipping; quarantine; lighthouses; ferries between a Pro¬
vince and any British or foreign country or between two Provinces; lines
of steam or other ships, railways, canals, telegraphs, and other works
and undertakings connecting a Province with any other Province or Pro¬
vinces or extending beyond the limits of a Province; lines of steamships
between a Province and any British or foreign country; and such works
as, although situate within a Province; are declared by the Parliament of
Canada to be for the general advantage of Canada or for the advantage
of two or more Provinces.
(.See section 91. entries 9, 10, 11, and 13 and section 92, entry 10.)
4. In Australia, the Commonwealth Parliament has power to make laws
with respect to:
(1) trade and commerce with other countries and among the States;
(2) postal, telegraphic, telephonic and other like services;
(3) lighthouses;
(4) quarantine;
(5) die control erf railways with respect to transport for the naval and
military purposes of the Commonwealth;
(6) the acquisition, with the consent of a State, of any railways of the
State on terms arranged between the Commonwealth and die State;
and
(7) railway construction and extension in any State with the consent
of that State.
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[See section 51, items (/), (v), (w'0> (bo), (xxxii ), (xxxiii) and (xxxiv) of
the Australian Constitution.]
It has also been made clear in a subsequent provision (section 98 of the
Constitution) that the power of the Parliament to make laws with respect
to trade and commerce extends to navigation and shipping and to railways
owned by any State.
Railways in Australia occupy, and occupied in 1900, a special position
in that they were and are owned and carried on by the various State
Governments. Hence the power of the Commonwealth Parliament in respect
of railways is somewhat limited. [See Dr. Wynes’ Legislative and Executive
Powers in Australia, p. 160.]
5. In the United States of America, Congress has been granted express
power to establish post offices and post roads. (See article I, section 8,
U. S. A. Constitution). In other respects, federal power appears to have deve¬
loped as incident to “inter-state commerce.” It has been held that “commerce”
includes the telegraph, the telephone, the radio and communication by
correspondence through the mails, besides railways and navigation. [See
Dodd’s Cases on Constitutional Law (Shorter Selection), 1942, pp. 356 and
391.]
6. In Switzerland, the Confederation is responsible for legislation con¬
cerning navigation as also legislation on the construction and working of
rail roads and on aerial navigation. The postal and telegraph services belong
to the Confederation. The Confederation can order at its expense or
encourage by means of subsidies public works which interest the whole or
any considerable part of Switzerland. The Confederation also exercises
supreme control over the roads and bridges in whose maintenance it is
interested and can decree provisions concerning motor traffic. (See articles
23. 24b, 26, 36. 37, 37a and 37b.)
7. In the U. S S. R., the powers of the Union extend to the “administration
of transport and means of communication” [see article 14 (m) of the
Constitution of the U. S. S. R.); and there are separate departments
(People’s Commissariats) for railways, communications, and water
transport.
UNION SUBJECTS (n)
Paragraph 15(1) of the Cabinet Delegation’s Statement of May 16, 1946,
recommends that the Union of ludia should deal with foreign affairs,
defence and communications and should have the powers necessary to
raise the finances required for these subjects. Whether these powers should
be powers of direct taxation in right of the Union or merely powers to levy
contributions from the Provinces is a question erf great importance on which
the statement is silent. One view is that the finances should be raised only
by contribution and not by taxation. The other is that the Union should
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have the power of taxation. The experience of other countries may be
useful in this connection:
UNITED STATES OF AMERICA
Before the present Constitution of the United States of America was
framed by the Philadelphia Convention, the States had been linked together
in a loose confederacy by certain Articles of Confederation. Under these
Articles, they had only one central organ, the Congress of States, in which
all the States were on an equal footing. The purpose of the confederacy
was to provide for the common defence of the States, the security of their
liberties and their general welfare. Article VIII provided that “All charges
of war, and all other expenses that shall be incurred for the common
defence or general welfare, and allowed by the United States in Congress
assembled, shall be defrayed out of a common treasury, which shall be
supplied by the several States, in proportion to the value of all land within
each State, granted to or surveyed for any person... The taxes for
paying that proportion shall be laid and levied by the authority and direction
of the Legislatures of the several States within the time agreed upon by the
United States in Congress assembled.”. In other words. Congress was to
determine the amount of money needed and to apportion to each State
its share. “Congress did so, but the States honoured the requisitions exactly
to the extent that each saw fit, and Congress had no power and no right
to enforce payment. What was the result? If one may judge by the com¬
plaints that were entered, it was more profitable to disobey than to obey.
In the dire straits for funds to which it found itself reduced. Congress
took advantage of the lack of information on land values to juggle with
the estimates, so as to demand more of those States that had previously
shown a willingness to pay. The financial situation was so serious that
early in 1781 before the Articles had been finally ratified. Congress had
already proposed to the States an amendment authorizing the levy of a five
per cent, duty upon imports and upon goods condemned in prize cases.
The amendment was agreed to by twelve States. But another weakness of
the Confederation was here revealed, in that the Articles could only be
amended with the consent of all of the thirteen States. The refusal of Rhode
Island was sufficient to block a measure that was approved of by the twelve
others. In 1783, Congress made another attempt to obtain revenue by
requesting authority for twenty-five years that the States should contribute
in proportion $ 1,500,000 annually, the basis of apportionment being
changed from land values to numbers of population, in which three-fifths
of the slaves should be counted. In three years only nine of the States had
given their consent and some of those had consented in such a way as
would have hampered the effectiveness of the [dan. It was, however, the
only relief in sight and in 1786 Congress made a special appeal to the
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703
r emaining States to act. Before the aid of the year, all of the States had
responded with the exception of New York. Again the inaction of a single
State effectively blocked the will of all the others.” (The Framing of the
Constitution, by Farrand, pp. 4-5.)
It was to rectify these and other defects that the Philadelphia Convention
was called. Under the Constitution framed by that Convention—which is
substantially the present Constitution of the United States of America—
Congress has been given power “to levy and collect taxes, duties, imposts
and excises to pay the debts and provide for the common defense and
general welfare of the United States”; “to borrow money on the credit of
the United States”; “to coin money, regulate the value thereof and of foreign
coin”. Thus, the right of direct taxation was substituted for the right of
levying contributions.
CANADA
Under the British North America Act (section 91, item 2), the Centre
has the power to raise money by any mode or system of taxation; to borrow
money on the public credit; to regulate currency, coinage and legal tender
as also the issue of paper money. The Provinces are limited to direct taxation
within their own borders in order to the raising of revenue for Provincial
purposes and the borrowing of money on their own credit.
AUSTRALIA
The Commonwealth, that is to say, the Centre, and the States have con¬
current powers of taxation except that the imposition of duties of customs
and excise belongs exclusively to the Commonwealth. Currency, coinage,
legal tender and the issue of paper money are also Commonwealth subjects.
States being prohibited from coining money or making anything but gold
and silver coin legal tender. [See sections 51, 52, 69 and 115 of the Common¬
wealth of Australia Constitution Act. 1900.] But even where the powers are
concurrent, section 109 of the Constitution Act provides that when a law
of a State is inconsistent with a law of the Commonwealth, the latter shall
prevail and the former shall, to the extent of the inconsistency, be invalid.
SOUTH AFRICA
In South Africa, the Union (Centre) has plenary powers of taxation,
because under section 59 of the Constitution Act, the Union Parliament
has full powers to make laws for the peace, order and good government
of the Union. The power of the Provinces is severely limited :
Subject to the provisions of this Act and the assent of the Governor-
General-in-Countil as hereinafter provided, the Provincial Council may
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make Ordinances in relation to matters coining within the following classes
of subjects, that is to say—
(i) direct taxation within the Province in order to raise a revenue for
Provincial purposes:
(ii) the borrowing of money on the sole credit of the Province with the
consent of the Governor-General-in-Council and in accordance with
the regulations to be framed by Parliament (of the Union);
* * *
(.See section 85 of the Constitution Act.) But of course the Union erf
South Africa is not a Federation and the Provinces are almost completely
subordinate to the Centre.
SWITZERLAND
According to article 42 of the Constitution, the expenses of the
Confederation have to be met—
(a) from the income of federal property;
(b) from the proceeds of the federal customs;
(c) from the proceeds of posts and telegraphs;
(d) from the proceeds of the powder monopoly;
(e) from half of the gross receipts from the tax on military exemptions
levied by the cantons ;
(f) from the contributions of the cantons which shall be determined by
federal legislation with due regard to their wealth and resources;
and
(g) from stamp duties.
As stated in the Constitution, this is a decidedly imposing array of
resources, but upon analysis it shrinks considerably. Contributions by the
cantons recall the old regime when the small sums necessary for the support
of the diet were thus procured. An ideal system for the apportionment
of such contributions under the present federal Government was worked out
in 1875, but the central authorities have never asked for assistance on this
basis. Posts, telegraphs, and telephones yield moderate returns. The pur¬
pose of the powder monopoly established in 1848 was not to secure revenue
but to assure the Government adequate supplies for all purposes of this
military necessity. Blasting powder is not included. However, the mono¬
poly has been made to produce a small net profit annually. Receipts from
the militaty exemption tax law are not large. They amounted to a little
over a million francs a year in the be ginning , increasing to 2,143,062 francs
in 1910. As to the income from federal property, it must be remembered
that the new Central Government possessed very little property at the time
of its creation in 1848. All in all, therefore, in spite erf the number of
different sources of revenue enumerated in the Constitution, the real burden
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705
of providing for the expenditure of the Federation devolved very largely
upon one of them, namely, the federal customs. (Government and Politics
of Switzerland, by Brooks, pp. 180—181.)
The history of currency and coinage in Switzerland is interesting. By
the Constitution of 1874, the Federation was given the power to regulate by
law the issue and redemption of bank notes, but it was specifically prohi¬
bited from creating a monopoly for the issue of such notes. This left
the numerous banks chartered by the cantons actually in control of the
field. In 1880, advocates of a national bank endeavoured to amend the
Constitution by initiative, but were unsuccessful. Eleven years later the
movement succeeded. In its present form, article 39 of the Constitution
confers the right to issue bank notes and other similar paper money
exclusively upon the Federation.
A national bank with headquarters in Bern and Zurich was opened in
1907. “As the agent of the Government in its difficult tasks of war finance
particularly in floating the mobilization loans, the new national bank has
proved itself one of the strongest foundation stones of the whole federal
structure.” (Brooks op. cit., p. 194.)
Under Article 38, the Federation alone has the right to coin
money.
“In Switzerland the original division of taxing powers in the Constitution
of 1848 allotted customs duties to the general government [that is, the
Federal Government] and practically no other taxing power. This remain¬
ing powers of indirect taxation and the whole power of direct taxation
seems to have been left to the cantons. This distribution came to be
modified when Switzerland felt the effect of an event which probably
affected federal public finance more than any other single factor—the first
world war. Switzerland was not a belligerent but she felt the effects of
the war none the less. Her army was completely or partially mobilized
for over fifty months; her customs revenue fell sharply with the decline of
international trade; and the revenue from the federal railways declined.
To meet these increases in expenditure and decreases in revenue constitu¬
tional amendments were passed to authorize the general government to
enter the field of direct taxation. Taxation of incomes, property and profits
was imposed by amendments of 1915 and 1919 and a tax on securities,
insurance premiums and the like, by an amendment of 1917. In all three
cases, as I have mentioned earlier, an arrangement was made that the
cantons should obtain some share in the proceeds of the tax. In 1925 a
tax on tobacco was authorized by constitutional amendment. In 1938,
largely to meet increased defence expenditure, an amendment of the Consti¬
tution authorized taxes on war profits, income and capital, a tax on beer,
and repealed the arrangement of 1917 by which the cantons shared in
the yield of the stamp taxes.” (K. C. Wheare: Federal Government,
p. 108.)
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AUSTRIA-HUNGARY
(Between 1867 and World War I)
As already mentioned, during this period Austria and Hungary were
separate States with a common monarch and a common administration in
respect of foreign affairs, defence and finance. Except for a few insigni¬
ficant matters, such as the lease of State property, the sale of old material
and the profits of the powder monopoly, the only direct source of revenue
belonging to the joint Government was the customs tariff, which rested
upon a treaty made between the two countries for ten years at a time in
the form of identical Acts of the two Parliaments. Side by side with the
budget of each State, there was a common budget which comprised the
expenditure necessary for the common affairs. The revenues of the joint
budget consisted mainly of the net proceeds of the customs and the quota
or the proportional contributions of the two States. This quota was fixed
for a period of ten years and generally coincided with the duration of the
customs treaty. Until 1897, Austria contributed 70 per cent, and Hungary
30 per cent of the joint expenditure remaining after deduction of the yield
from customs and other common revenues. Subsequently, Hungary’s quota
was slightly increased and in 1907, it was a little over 36 per cent.
Sir Basil Blacketts verdict on Provincial Contributions in India under the
Meston Award
“Ever since the reforms were inaugurated, the Provincial contributions
have been a millstone round the neck both of the Central Government and
of the Provincial Governments, poisoning their mutual relations and ham¬
pering their every action. Their quality, even more than their amount, has
strained the resources of the giver and the patience of the recipient. They
have brought curses, not blessings, both to him who has given and to him
who has taken.” [Budget Statement (1927-28).]
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SETTING UP OF THE UNION POWERS COMMITTEE
January 1947
[The Objectives Resolution moved in the Constituent Assembly on
December 13, 1946 (see Document No. 1) envisaged a Republic of
India wherein the various territories would possess and retain the
status of autonomous units with residuary powers, and exercise
all the powers and functions of government and of administration
save and except such powers and function* as were vested in or assigned
to the Union, or as were inherent or implied in the Union or
resulting therefrom. On January 25, 1947, C. Rajagopalachari moved a
resolution in the Constituent Assembly proposing the appointment of
a committee to examine the scope and content of the subjects assign•
ed to the Centre under the Cabinet Mission's Plan and “to draw up
lists of matters included in and interconnected with' 9 those subjects.
The resolution setting up the proposed committee was adopted on the
same day. This committee which came to be known as the Union
Powers Committee, started with an initial strength of twelve members
but on April 10, two representatives of the Princely States were also
added. The texts of the resolution appointing the committee and
Raiagopalacharfs speech moving the resolution are reproduced below.]
(I) TEXT OF THE RESOLUTION
January 25, 1947
Whereas in paragraph 15(i) of the Cabinet Delegation’s Statement of
May 16, the subjects assigned to the Union Centre are generally and
compendiously indicated under four broad categories;
And whereas an understanding of the scope of these subjects is necessary
for the purpose of framing the Union and other Constitutions, of avoiding
as far as possible overlapping and conflicts between the provisions in the
Constitution relating to the Union and those in the Constitutions referred to
in clause (v) of paragraph 19 of the Statement, and of bringing all the said
Constitutions into line with each other;
And whereas it is necessary to draw up lists of matters included in and
interconnected with the subjects assigned to the Union before the framing
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FRAMING OF INDIA’S CONSTITUTION
of the Constitutions referred to in clause (v) of paragraph 19 of the
Statement is taken up for consideration;
This Assembly resolves—
(a) that a committee consisting initially of the following members:
(1) The Hon’ble Pandit Jawaharlal Nehru, (2) Mr. Sarat Chandra
Bose, (3) Dr. Pattabhi Sitaramayya, (4) The Hon’ble Pandit Govind
Ballabh Pant, (5) Mr. Jairamdas Daulatram, (6) Sri Biswanath Das,
(7) The Hon’ble Sir N. Gopalaswami Ayyangar, (8) Bakshi Sir Tek
Chand, (9) Diwan Bahadur Sir Alladi Krishnaswami Ayyar,
(10) Mr. D. P. Khaitan, (11) Mr. M. R. Masani, (12) Mr. K. M.
Munshi, be constituted to examine the above matters and to report
to the Assembly not later than the 15th of April, 1947,
(b) that the President may add ten more persons to the committee,
and that the selection erf all or any of these ten additional mem¬
bers be made at such time and in such manner as the President may
determine,
(c) that the quorum for the committee shall be one-third of the total
number of members for the time being of the committee, and
(d) that casual vacancies in the committee be filled as soon as possible
after they occur by nomination by the President from among the
members of the Assembly.
(n) RAJAGOPALACHARl’S SPEECH
The object of the Resolution is to help this Assembly in framing the
Constitution so as not to leave for the future any overlapping or conflicts
that might occur if various proceedings took place without correlation in
different sections of the Assembly or otherwise. I may be permitted,
therefore, to explain exactly what the possibilities are which we wish to
avoid.
This Assembly, Sir, has been entrusted with a very serious task, perhaps
more onerous than any Constituent Assembly in the world has had to deal
with. The number of differences that have to be settled are enormous;
the population that has to be satisfied is enormous; and the problems that
are before the Assembly are as difficult as any which any other Assembly
has had before it. The British Government’s Statement has put things in
a fairly clear way, but not quite as clearly as we would desire it. If we
examine the British Government’s Statement, on which this Assembly’s
programme is based, we will find few matters settled clearly.
Number one, it is decided that we are to frame a Constitution for a
united India.
Number two, we have to frame a Constitution where the Centre is given
the powers over Defence, Communications and Foreign Affairs and also
powers necessary to raise the finances required for the above subjects.
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709
And then, thirdly, another principle has been laid down, that the residuary
powers, that is to say, all powers which have not been transferred to the
Central Government, should remain in the Provinces.
Then fourthly, a subsidiary point is laid down also that such powers as
the Provinces agree to transfer to any groups they may form would go to
the groups. All subjects other than the Union subjects and all residuary
powers should vest in the Provinces. The States will retain all subjects and
powers other than those ceded to the Union. This is (3) and (4) of clause IS
of the Statement. It is further laid down that there will be a ten-year revision
of this Constitution and the initiative for that revision is vested in the
Provinces. These are the broad principles laid down in clause 15.
But let us examine this a little more closely. We find in sub-clause
(1) that “The Union should have all the powers necessary to raise the
finances required for the above subjects”. Now, what arc powers, unless
we mean the power actually to enforce the law as prescribed for raising the
finances and that would include. Sir, the power of collection and probably
also the power of securing the services of a proper judiciary wherever
required. No provision has been put down for this purpose. Again, if
we examine clause 19 which gives die procedure for carrying out the prih-
ciples set out in clause 15, we find, strangely enough, a lacuna. In sub-clause
(v) of clause 19 it is stated that the Sections shall proceed to settle Provin¬
cial Constitutions and then they shall also decide whether any group
Constitution shall be set up, and if so with what Provincial subjects the
group shall deal. Then the representatives of the Sections and the Indian
States shall reassemble for the purpose of settling the Union Constitution.
Now, there is no provision as to how and when the group Constitution
shall be settled. Beyond stating that whether any group Constitution shall
be set up may be decided in the Sections and also that the Sections shall
set out the Provincial subjects with which the groups should deal, there is
no provision for settling the group Constitution itself.
Then, again, if we examine the provisions as to the Advisory Com¬
mittee on Minorities, we find this. The Advisory Committee shall report
to the Union Constituent Assembly upon the list of fundamental rights,
clauses for protecting minorities and a scheme for the administration of
tribal and excluded areas, and it should advise whether these rights
should be incorporated in the Provincial, the group or the Union Cons¬
titutions. Now, it follows logically that when the Advisory Committee
has reported to the Union Assembly, the Union Assembly should have the
power to see whether it should be incorporated in the Provincial or in
the group or in the Union Constitution. If the Provincial and group
Constitutions should be settled beforehand, and at a later sitting of the
Union Assembly, they decide that it should be incorporated in the Pro¬
vincial or group Constitutions, what is the procedure to be followed?
Therefore, there is a great deal of correlation to be done before we can
46
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FRAMING OF INDIA’S CONSTITUTION
cany out the intentions of the Cabinet Mission’s Statement, or the resolu¬
tions of this Assembly. If we interpret the programme laid down in clause
19 literally and assume that what is asked to be done at the various sittings
should be the only things done at this stage and nothing else, we will be
landed in a great deal of difficulty at the end in carrying out the explicit
intentions of the Cabinet Mission’s Statement. Considering all these
matters, it has been found necessary, we have found it necessary. Sir, to
make this motion for the appointment of a committee which shall do the
required thinking on these matters and report to this House before we
end the preliminary session so that we may frame our programme of
future work.
This Assembly has to consider, as I said before, very serious matters,
and we will have to do a great deal of thinking. We cannot do our work
on the assumption that we are here only to register previously arrived at
decisions, opinions and programmes. We have to do a lot of substantial
thinking in this Constituent Assembly; and in the nature of things, there¬
fore, we require the assistance of a Select Committee to consider and
advise us on the difficulties that may arise in the course of our work. It
is with that object that this committee has been proposed. It is not with
the object of undermining the essential intentions of the Cabinet Mission’s
Statement or anything of that kind. It is to help us to think out our diffi¬
culties and to find solutions for those difficulties.
Sir, if I may venture to put it that way, it is not only a matter of
culture or good breeding, but it is statesmanship to think of those who are
absent, to think of other people than ourselves, when we deal with any
matter. That is why, in proposing every motion, Hon’ble Members have
dealt with the intentions and purposes of those who are not yet present
in this Assembly. We find a great many possibilities of misunderstanding
and we try to anticipate those difficulties and remove possibilities of mis¬
understanding as far as we can. In this connection I would mention, there¬
fore, that those who are absent should not misunderstand the purpose of
this committee that I am proposing. The Muslim League policy has been
to secure a separate, sovereign State of their own. Now, this Constituent
Assembly has taken up its task on the basis of the Cabinet Mission’s State¬
ment and if one thing is more clearly decided in His Majesty’s Govern¬
ment’s Statement than anything else, it is this, that there shall be only
one sovereign State in India. It has been decided clearly beyond all possi¬
bility of doubt that a division of India into two sovereign States is not
to be thought of in this connection. That explains many of the things that
we are doing and will remove many of the misunderstandings that are likely
to arise. If I may put it that way, the League has gone the wrong way
for securing their objective. If they had only restricted their claims to
what legitimately should be asked in pursuance of their policy, possibly
they might have achieved their object and they would not have been in
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SETTING UP OF THE UNION POWERS COMMITTEE
711
the present difficulty. Let me put it frankly. The greatest difficulty for
the Muslim League now is that they have to join this Assembly and there¬
by. once for all and beyond doubt, accept the single sovereign State of
India. That is why they find it difficult to come in. and that is why these
postponements. That is why the League fixes its date always after the
meetings that the other major parties have programmed for their consulta¬
tions. That is why we find today, even after the last adjournment, the
League has been unable to make up its mind and join us. Let us under¬
stand the difficulties of the other side. If the League comes in, they come
in on the express understanding that India shall be only one sovereign
State, abandoning their separatist policy. This is difficult for them to do
at once. Let us realise these difficulties and not misunderstand even the
delays. We desire to proceed with the work as fast as possible, understand¬
ing very well the difficulties of the Muslim League members in the way of
their coming and joining us at this stage. Let them think it over. Let
us give them ample time to come. But that does not mean that we stop
our work, that we stop thinking, that we stop doing anything whatsoever,
until they make up their minds. That would lead to indefinite postpone¬
ment. Hence, Sir, I have no hesitation in recommending this Resolution
that we should appoint this committee of twelve members as imposed, so
that they may think out all the difficulties and advise us so that we may
frame a Constitution for India which will create no difficulties for those
who have to work it, and which will be a stable, strong Constitution for
the Centre with stable and strong Constitutions for the Provinces, to work
under the Centre and in the single Stats that is being contemplated. There¬
fore, Sir, I move that this Resolution be accepted by the House. As I said
before, there are two amendments. One is to replace the election by pro¬
portional representation, by twelve members definitely named to the House;
and the other is to provide for quorum and another is to provide for casual
vacancies. I commend the Resolution with these amendments.
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NOTES SUBMITTED TO THE UNION POWERS
COMMITTEE (I)
February-April 1947
[The Union Powers Committee commenced its deliberations on March
2, 1947 (see Document No. 29). Several notes on various aspects of
the Union powers were submitted to the committee. The notes by
K. M. Munshi and Alladi Krishnaswami Ayyar inter alia examined
the question of relationship between the Union and the units, the ambit
of express ; implied and resulting powers, and the scope of defence,
communications, finance, currency, etc. The exact dates of the pre¬
paration or circulation of all these notes are not known; presumably
they were submitted to the committee some time during February -
March. A note on the ambit of the ‘Defence Power' was prepared
on April 4 by B. N. Rau at the instance of the committee.
On April 17, B. Das also sent a note on the Union subjects for
the consideration of the committee. The texts of all these notes are
reproduced below.]
(I) NOTES ON UNION POWERS BY K. M. MUNSHI
(a) implied and resultant powers
1. The Supreme Court of India and federal courts and registration of
legal practitioners entitled to practise therein.
2. Acquisition of areas, property and concerns for the purposes of the
Union, but as regards property situate in a unit subject always to unit
legislation, save in so far as Union law otherwise provides.
3. Colleges, schools, libraries, museums, memorials, universities conducted
by or maintained out of the funds of the Union or in Union
areas.
4. Agencies and institutes few the following purposes, that is to say, for
research, for professional or technical training, or for the promotion of
special studies.
5. Census.
6. Election of the President and the Vioe>President.
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i) 7l3
7. Elections to the Union Parliament subject to the provisions of this
Act and of any Order in Council made thereunder.
8. The salaries of the President and the Vice-President of the Union, the
Ministers of the Union, of the President and the Vice-President of the Senate
and of the Speaker and the Deputy Speaker of the National Assembly; the
salaries, allowances and privileges of the members of the Union Parliament;
and the punishment of persons who refuse to give evidence or produce
documents before committees of the Legislature.
9. Offences against Union laws.
10. Enquiries and statistics for the purposes of the Union.
11. The recognition throughout the Union of the laws, the public Acts
and records and the judicial proceedings of the State.
12. Quarantine—the prevention of the extension from one unit to another
of infectious or contagious diseases or pests affecting men, animals or plants.
13. Patents; trade marks; trade designs; copyright.
14. Planning.
(b) defence power
. “Defence” means the defence of the Union and of every part thereof
and includes generally all preparations for defence as well as all such acts
in times of war as may be conducive to its successful prosecution. [Griffith
C. J. in Farey V. Burvett. 21. C. L. R. 433.)
In particular, “Defence” includes—
(1) the raising, training, maintenance, and control of naval, military and
air forces and employment thereof for the defence of the Union and
the execution of the laws of the Union and its units;
(2) defence industries;
(3) atomic energy, and mineral resources essential to its production;
(4) the following items, mutatis mutandis, in List I of Schedule VII
of the Government of India Act, 1935, viz., items Nos. 2, 29, and 30.
(C) FOREIGN AFFAIRS
“Foreign Affairs” means external relations of the Union and in particular
includes the following subjects:
(1) Diplomatic and consular representation
(2) United Nations Organisation
(3) War and peace
(4) Participation in international conferences, associations and other
bodies and implementing of decisions made thereat
(5) Trade and commerce with foreign countries
(6) Foreign loans
(7) Naturalisation and aliens
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714
FRAMING OF INDIA’S CONSTITUTION
(8) Extradition
(9) Passports and visas
(10) Foreign jurisdiction
(11) Admiralty jurisdiction
(12) Piracies, felonies committed on the high seas and offences committed
in the air against the law of nations, and
(13) The following items, mutatis mutandis, in List I of Schedule VII
of the Government of India Act, 1935, viz., items Nos. 3, 17. 18, 19,
and 23.
(d) COMMUNICATIONS
“Communications” include in particular the following:
(1) Highways and waterways declared by the Union to be Union high*
ways and waterways.
(2) Shipping and navigation on inland waterways, declared by the Union
to be Union waterways, as regards mechanically propelled vessels,
and the rule of the road on such waterways; carriage of passengers
and goods on such waterways.
(3) The following items in the Federal Legislative List, viz., items Nos.
7 (with the exception of postal savings bank which will come under
“Finance”* 18. 19, 20. 21. 22, 24, 25. and 26.
(A) NOTES ON UNION POWERS BY ALLADI KRISHNASWAMI
AYYAR
(A) RELATIONSHIP BETWEEN THE UNION AND THE UNITS
Cf. section 107,
Government of
India Act,
1935.
In dealing with the subject of Union Powers, one of the
chief problems will be the relationship that ought to subsist
between the Union and the Provinces.
(1) With reference to the paramountcy of the Union or
the Federal law over the Provincial law: There is not a
single federal constitution which does not provide for that
contingency. The Constitution of the Commonwealth of
Australia enacts in section 109 that when a law of a State
is inconsistent with a law of the Commonwealth, die latter
shall prevail and the forma shall to the extent of the in¬
consistency be invalid. Section 91 of the British North
America Act enacts that any matter arising within any
of the classes of subjects enumerated in section 91 shall
not be deemed to come within the class of matters com¬
prised in the enumeration of the class of subjects assigned
exclusively to the legislature of die Provinces.
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NOTES submitted to the union powers committee (i)
715
Article VI, clause 2 of the United States Constitution
provides that the Constitution, and the laws of the United
States which shall be made in pursuance thereof, shall be
the supreme law of the land, anything in the Constitution
or laws of any State to the contrary notwithstanding.
The Constitution of the German Reich in article 30
enacts that the law of the Reich overrides the law of a
State. As regards the Union of the Soviet Republics, article
19 of the U. S. S. R. Constitution provides that the laws
of the U. S. S. R. have the same force within the territory of
every Union Republic and article 20 enacts “In the event
of a discrepancy between a law of a Union Republic and an
all-Union law, the all Union law prevails”, though under arti¬
cle 15 the residuary power is vested in the Union Republic.
(2) There must be, in view of the differential status bet¬
ween the States and the Provinces up till now, a definite
provision inserted to the effect that the laws of the Union
shall have the same force within the territory of every unit
of the Union.
(3) The execution of federal laws, whether by the Union
officials or through the instrumentality of the Provinces and
States requires separate attention. Under the American sys¬
tem, the Federation has its own officials or agencies and even
its courts though the exigencies of the situation have compel¬
led the federal Government to invest State courts with
federal jurisdiction. Under the Government of India Act
an option is given to the Federation in certain cases to use
Provincial instrumentality for the execution erf federal laws.
This is a problem which has received special attention from
the framers of every federal constitution.
In the ultimate analysis, the federal Centre must also act
as the guardian of the Constitution if need be, by offering
military assistance to the units of the Federation.
(4) Closely connected with this is the subject of Provin¬
cial or State militia and the link that ought to subsist bet¬
ween the Centre and the Provinces or States in that behalf.
The problem connected with inter-Provincial trade, the
right of the citizens of one Province to migrate to or settle
in another Province or State, and the Provincial or State
right of deportation have already been touched upon.
Cf. sections 8,
124, 125, 126,
128 Govern¬
ment of India
Act. 1935.
Cf. American
and Swiss
Constitutions.
(b) express, implied and resulting powers
A constitution from the very nature cannot enter into a minute
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716
FRAMING OF INDIA’S CONSTITUTION
specification of all the minor powers naturally and obviously included in and
flowing from the great and important ones which are expressly granted. In
regard to the Constitution of the U. S. the rule has been laid down that
where a general power has been conferred or duty enjoined every particular
power necessary for the one or the performance of the other is comprehended.
This incidental power has been rested sometimes on article I, section 8,
clause 18, of the Constitution which enacts that the Congress shall have
power to make laws which shall be necessary or proper for carrying into
execution the foregoing powers and all other powers vested by the Constitu¬
tion in the Government of the U. S. or in any of the departments of the U. S.
In this connection it might be mentioned that the language of the tenth
amendment which reserves to the States not merely the powers not expressly
delegated to the United States but also those not delegated to the U. S.
This is significant in view of the fact that in the corresponding section in the
articles of the Confederation the word ‘express’ is specially inserted ( vide
article 2). While the necessary and proper clause in the Constitution may
probably be the basis for the doctrine of limited powers to the Federal
Government, it has been pointed out by eminent authorities that this power
would be there even without such a clause. The various instances in which
important powers have been implied from the express powers found in the
Constitution are referred to in Wills’ Constitutional Law, p. 217: The power
to incorporate a bank of the United States, to collect taxes and to borrow
money, the power to issue legal tender notes from various express powers
in the Constitution. In this connection, it may be pertinent to quote a
passage from the great case of McCulloch v. Maryland, 4 Wheaton, p. 16,
wherein from the enumerated powers such as to levy and to collect taxes,
to borrow money, to declare and conduct wars, to raise and support military,
naval and air forces, the power to incorporate a bank for Union purposes.
Chief Justice Marshal, while conceding that one power cannot draw in other
powers of major or minor importance, laid stress on the principle that a
nation entrusted with wide powers affecting the happiness and welfare of
millions must be necessarily entrusted with ample means for its execution.
If. throughout the Republic, revenue is to be collected and expended,
armies are to be marched and supported, the exigencies of the nation would
require that the treasure raised in the North should be transported to the
South, that raised in the East conveyed to the West. Or that the order shall
be reversed. When once the power to raise the revenue and applying it to
national purposes is being admitted one has necessarily to imply the power
of conveying money from place to place as the exigencies of the nation may
require and of employing the usual means of conveyance. On the above
ground, Marshall C. J. inferred the power to establish a national bank as
flowing from these powers. In the famous words of Marshall C. J., in
McCulloch v. Maryland, “Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are appropriate, which are
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i)
717
plainly adapted to that end, which are not prohibited, but consistent with
the letter and spirit of the Constitution, are constitutional. That a bank is
a convenient, useful and essential instrument in the prosecution of the
Government’s fiscal operations was not a subject erf controversy”. Similar
observations occur in the legal tender cases, last of it being 110 U. S. 421.
In the judgments of the Supreme Court, apart from the expression “implied
powers”, there is also authority for inferring inherent and resulting powers.
The expression “inherent powers” has been used with respect to a matter
of national interest, such as no particular State is competent to deal with.
There have been doubts expressed as to this aspect of the Union power but
a resulting power is one implied from a group of enumerated powers instead
of from a single express power. Instances of this are found on p. 221 of
Wills’ Constitutional Law. On the question of inherent, implied and resulting
powers, see Willoughby, vol. I, 993-94: legal tender cases, eminent domain,
expelling aliens, acquisition and cession of territory.
The Australian Constitution, in section 51, clause 39, empowers the Parlia¬
ment to legislate with reference to matters incidental to the execution of
any power vested by the Constitution in the Parliament or in either House.
The exact scope of the clause has been the subject of judicial decisions in
the Australian High Court and by the Privy Council: Attorney-General for
Commonwealth v. Colonial Sugar Refining Co. Ltd., 1914, A. C. 237. The
Privy Council put a limited construction by holding that the words do not
do more than cover matters which are incidents in the exercise of some
actually existing power conferred by statute or common law. In the particular
case, dealing with the power of a Royal Commission to compel answer from
witness, the Privy Council held that the legislation did not come within the
scope of incidental powers as in clause 39. There has been a sharp difference
of judicial opinion in the Australian High Court as to whether to invoke
an incidental power it is necessary that there should be a legislation in
exercise of the main power in existence which it is necessary to pursue for
the present. In a recent case before the Australian High Court, reported in
71 Commonwealth Law Reports 237, the Australian High Court held that
section 81 of the Act, which provides for the revenues or moneys reused
being appropriated for the purposes of the Commonwealth, does not
authorise the Parliament to enact the Pharmaceutical Benefits Act for the
supply of chemists without charge to the public in the States and imposing
duties on medical practitioners to afford relief in the States. The High Court
came to the conclusion that the legislature is not authorised by the power
of appropriation in section 81 of the Constitution and incidental legislation
in section 51, clause 39. This decision emphasises the need for the enacting
of the incidental powers in wider terms than section 51 of the Australian
Constitution. In this connection, it may be noted that, there is a wide power
of appropriation in the Congress of the U. S. A. which has enabled the
Congress to grant moneys and to regulate the policy of the States. It is
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718
FRAMING OF INDIA'S CONSTITUTION
doubtful whether such a power of appropriation can be inserted in our
Constitution having regard to the fact that under the White Paper moneys
have to be raised for particular purposes. In the Constitution of the
Dominion of Canada, there is no such provision as section 51, clause 39, of
the Australian Constitution; but the Privy Council upheld the ancillary
provisions even in a Provincial enactment. In regard to the Dominion
of Canada, the power of enacting ancillary provisions in legislation
has always been conceded though the courts have the power to prevent and
will prevent usurpation under the guise of ancillary legislation. The most
prudent course would be to draft a clause on the lines of recent American
decisions.
(c) DEFENCE POWER
All that we are interested in at this stage is to indicate the scope of
the defence power without attempting a precise and exhaustive definition
of the defence power.
The defence power would in our opinion extend to items 1, 2, 29 and 30
of the federal list of the Government of India Act, 1935, ic., the employment
of the armed forces of His Majesty for the defence of the Provinces and for the
maintenance and execution of the laws of the Union and of the Provinces,
and would include the exercise of all powers necessary for the preparation of
war in times of peace, and any such action in times of war as may be condu¬
cive to the successful prosecution of a total war under modern conditions,
the power to conclude peace, to acquire and cede territories and the power
to repatriate soldiers and reestablish them in civil life after the termination
of war. According to the Constitution of the United States, the war power
extends to the raising and supporting of armies, the provision and mainte¬
nance of naval and air forces, the governance of land, naval and air forces,
the organising and calling forth of the militia, together with the power to
make all laws necessary and proper for carrying into execution the foregoing
powers.
The war power in the United States has been construed to be of die
widest character.
Maintenance of Local Militia
Item 1, List I of 7th Schedule, of the Government of India Act, 1935.
excludes from its operation the forces raised for employment in Indian States,
or military or armed police maintained by Provincial Governments.
The United States Constitution, under article I, section 8, clause 16.
recognizes the right of the States to train militia, subject to the control of
the United States of America. Article I, section 10, clause 3, recognizes
the power of the State to protect itself when actually invaded. According
to article n, section 2, the President is the Commander-in-Chief of the militia
in several States when called into actual service of the United States.
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i)
719
Switzerland: Articles 15 to 22 attempt an integration of local militia with
ultimate military control.
[In view of the peculiar position at present occupied by the Indian States
and the recognition erf certain local militia in some of the Federations, the
committee will have to consider whether it is at all advisable to deal expressly
with this problem at this stage.]
(d) COMMUNICATIONS
What exactly is comprehended by the expression “communications”
may be gathered from an examination of the lists in the Government of
India Act, 1935—
List 1: Item 7: Posts and telegraphs, including telephones, wireless,
broadcasting and other like forms of communication.
Item 18: Port quarantine, seamen’s and marine hospitals and hospitals
connected with port quarantine.
Item 20: Railways, regulation of railways, etc.
Item 21: Maritime shipping, including shipping and navigation on tidal
waters, admiralty jurisdiction.
Item 22: Major ports, that is to say, the declaration and delimitation of
such ports, the constitution of port authorities therein.
Item 24: Aircraft and air navigation, aerodromes, regulation and organi¬
zation of air traffic and aerodromes.
Item 25 : Lighthouses, beacons, etc.
Item 26: Carriage of passengers and goods by sea or air.
List II: Item 18: Roads communications, that is to say, roads, bridges,
ferries and other means of communication not specified in List I; minor rail*
ways subject to the provisions of List I with respect to railways: municipal
tramways, ropeways; inland waterways and traffic thereon subject to the
provisions of List III with regard to such waterways; ports, subject to the
provisions of List I with regard to major ports; vehicles other than
mechanically propelled vehicles.
List III: Item 32: Shipping and navigation on inland waterways as regards
mechanically propelled vessels and the rule of the road on such waterways,
carriage of goods and passengers on inland waterways.
Cf. Canada: section 19, entries 9, 10, 11, 13 and section 92, entry 10.
Cf. Australia: section 51, items 1, 5, 7, 9, 32, 33, 35, read with section 98,
which explains trade and commerce as extending to navigation and shipping.
Cf. The United States of America, under the item ‘inter-State commerce’,
telegraph, telephones, radio, communications besides railway and navigation.
An examination of the existing lists will show that the subject of com¬
munications is all comprehensive and if the Union subjects were to include
every item coming under communications, they would cut into many subjects
which are included in the Provincial and Concurrent Lists in the present day.
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720
FRAMING OF INDIA’S CONSTITUTION
Prudence erf course would dictate that a good part of the power will have
necessarily to be ceded to the Provinces having regard to the wide area
of India.
There are subjects like fisheries beyond territorial waters Gtem 23 of
the federal List), which have necessarily to be brought under the Union
control. Trade and commerce with the outside world have necessarily to
be brought under foreign relations. They might also impinge partly on the
subject of communications. Any tariff policy that might be adopted by
the Indian Union must be in close association with, and be included in,
foreign relations. Besides, customs will have to be necessarily one of the
principal sources of revenue of the Indian Union. A distinction may
necessarily have to be drawn between trade and commerce with other coun¬
tries and trade and commerce within the Indian limits across the Provincial
borders and inter-Provincial trade, i.e., trade within the limits of the Provinces
themselves. Under the Australian Constitution, inter-State trade comes within
the ambit of the Commonwealth. The White Paper is silent about the
freedom of inter-Provincial trade.
There is no Union or Federation today which does not secure the
freedom of inter-Provincial or inter-State trade. While there need be no
objection to the State or the Province having control over its internal trade,
subject to the rules regarding non-discrimination, the whole basis of an en¬
during future structure of the Union will depend upon the freedom of inter¬
state or inter-Provincial trade. Tariff policy followed by the Australian
States prior to the formation of the Australian Commonwealth and the per¬
petual feuds among the members of the South African Union prior to the
establishment of the Union Constitution furnish a useful lesson in this res¬
pect. The great problem in the future of India will be how to secure a
harmony between the principle of Provincial autonomy and the progress of
Indian Union. Some solution must be found for the purpose of equating
and bringing about a synthesis of these two principles. For, otherwise
Provincial discrimination and jeolousy may strike at the very foundations
of the Union. How can India be one from the point of view of the outside
world and be divided up into competing Provinces and States within the
limits of India when it is the avowed object even of the U. N. O. to bring
about a harmony of trade policy of different countries and when each nation
has to come to the rescue of the other in matters of goods supply and other
problems? Trade relations inter se among the different parts of India will
require careful examination. Trade with outside countries will have to
be brought under foreign relations and customs regulation if customs will
continue to be a source of revenue to the Union. Trade relations ameng
the different parts of India will have to be brought under the head of com¬
munications. The United States Supreme Court proceeding from a different
angle of approach brought communications or intercourse between States
under commerce as intercourse is of the very essence of commerce. It will
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i)
721
of course be difficult to bring purely inter-State under communications.
If the interpretation above suggested is adopted, we would be bringing
the Constitution of the Indian Union in line with the Australian
Constitution.
Under the American Constitution there is no power conferred upon the
United States in regard to transport or communications as such. Under
clause 3 of section 8 of article I, the Congress is given power to regulate
commerce with foreign nations and among the States and with the Indian
tribes. The United States Supreme Court interpreted this clause as embrac¬
ing the power over communications and transport as commerce necessarily
involves the idea of intercourse. In the leading case of Gibbons v. Ogden,
Marshall C. J. held that transportation by water is necessarily included in
the word commerce as the word commerce has always been understood to
comprehend navigation within its meaning; a power to regulate navigation
is expressly granted as if that term has been added to the word commerce.
The later decisions of the United States Supreme Court have extended the
expression even to transport of persons. (vide 11 Peters 102.) In the case
in 96 U. S. page 1, the court remarked that the powers granted by the Com¬
merce clause are not confined to the instrumentalities of commerce in use
when the Constitution was adopted but they keep pace with the progress of
the country and adapt themselves to the new development of time and cir¬
cumstance. In regard to the case in 96 U. S. 1, the following remark occurs
in Willoughby:
The doctrine thus laid down in the Pensacola case has never been ques¬
tioned. No cases involving the transmission of wireless messages have
been decided by the Supreme Court but without doubt they will be treat¬
ed as commerce and the same would be true of messages and persons
carried by aeroplanes and other apparatus for air navigation. It is un¬
necessary to go into the other refinements in the interpretation of the
Commerce clause. In fact it is the Commerce clause that has strengthen¬
ed the powers of the Union beyond anything in the contemplation of the
fathers of the American Constitution.
And it can be stated that the commerce is the very life and soil of the powers
of the Union.
In Australia, under section 51. clause 1, the Parliament has the power to
make laws with respect to trade and commerce with other countries and
among the States. Section 98 of the Constitution express'y provides that the
power of Parliament to make laws with respect to trade and commerce
extends to navigation and shipping and to railway property of any State.
The trade and commerce power in the U.S.A. has also to be read along
with section 10 which provides that no State shall without the consent of
Congress lay any imposts or duties on imports or exports except what may
be absolutely necessary for executing inspection laws. Also section 9, clause
5: “No tax or duty shall be laid on articles exported from any State.”; clause
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722
FRAMING OF INDIA’S CONSTITUTION
7: “No preference shall be given by any regulation of commerce or revenue
to the ports of one State over those of another; nor shall vessels bound to
from one State be obliged to enter, clear or pay duties in another.”
(b) finances
Paragraph 15, clause 1, of the White Paper* provides that there shall be
a Union of India having the powers necessary to raise the finances required
for the subjects of foreign relations, defence and communications. On
a fair reading of the White Paper, the stress laid in almost every paragraph
of the White Paper on the main object of the Constituent Assembly is to
frame a Constitution for an independent India; the defence of the country
is the live principle on which the future constitutional structure must rest
Defence under modern conditions would extend to every aspect of a nation’s
life in times of war and in times of peace and must enable the country to
prepare itself for defence and war. It must necessarily eat up a good part
of the financial resources of the country. The finances raised must be in a
position to secure the military strength of the country and the different arms,
air, naval and land, must be maintained in the highest standard of efficiency
according to modern standards. One can have an idea of the expense involved
both in peace and war time by looking at the budget figures. Unless effec¬
tive sources of revenue are secured to the Union, the whole Union will break
down and will become a prey either to foreign invasion or will be subject
to internal strife and dissensions. It is inconceivable that the Union can rely
upon contributions from the different units for the purpose of maintaining
its naval, military and air arms. There is no need to reinforce the argu¬
ment by reference to any analogies. The tribulations of the Confederation
period in the U.S.A., which are graphically described in the Constitutional
History of the United States by Andrew McLaughan, furnish a useful
guidance. It was acknowledged on all hands that unless there was a timely
exertion in establishing a general revenue which gave strength to the Con¬
federacy, the existence of the Union itself was threatened, and all those great
and invaluable privileges for which the American nation fought in the war
with England would disappear. Various devices were attempted to improve
the financial condition of the Confederation, all of which failed and the
United States were saved by the framing of the federal Constitution which
gave power to the Union to raise the necessary finances while not interfering
with the autonomy of the States in regard to certain forms of taxation. The
White Paper, in recognizing the power of the Union of India to raise the
necessary finances, must necessarily be taken to have conceded the power
to raise the necessary taxes. Professor Willoughby, at para 376, vol. II,
Constitution of the United States, makes the following remarks:
•Reference is to the Cabinet Mission’s Plan. See vol. I, Document No. 48(i)i
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i)
723
The power to tax is ordinarily spoken of as an incident of sovereignty,
or, as a sovereign power. A more exact statement is, however, that
inasmuch as the raising of a certain amount of revenue is essential to the
existence and operation of a public governing body, that body has, even
in default of express constitutional grant, an implied power to compel
those subject to its authority to contribute the financial means necessary
for its support
Professor Willis, in his book Constitutional Law of the United States,
points out that the two great legislative powers usually exercised by any
Government are the powers of taxation and the power of eminent domain.
The power of taxation may be defined as the legal capacity of a Government
to impose charges upon persons or their property to raise revenue to
governmental purposes. Referring to the power of taxation, the author points
out that the power has been expressly delegated, although the federal
Government would have of course the implied power even if the same had
not been expressly delegated. The power of eminent domain may be implied
from the limitation on the exercise of this power, found in the fifth Amend¬
ment But even if there be no such limitation, undoubtedly it would still
be held to be an implied power of the federal Government. Cooley, in his
Constitutional Limitations, at page 986, makes the following observations:
“The power to tax rests upon the necessity and is inherent in every sove¬
reignty.” Chief Justice Marshall, in McCulloch v. Maryland, 4 Lawyers
Edition, p. 579, at 607, says: “The power of taxing the people and their
property is essential to the very existence of Government.” The same learned
Judge, in another case, 7 Lawyers Edition, p. 939, at 955, observed: “It
rests in the Government as part of itself.” The power to raise the necessary
revenue posits the power of the Unto to tax.
In view of the distribution of governmental power in a federal Union
between the Union and the Provinces, the citizen will have to bear the taxa¬
tion both by the Unto and the Provinces. It would require a detailed exami¬
nation to allocate the taxing power between the Union and the Provinces.
The distribution of taxing between the Centre and the Provinces under the
Government of India Act, 1935, may furnish a useful basis to such
allocation.
(F) PROBLEM OF CURRENCY
How are the powers of the Union with reference to communications, defence
and the power to raise the necessary funds for these purposes to be exercised
or effectively exercised without the power of the Union extending to cur¬
rency and bills of credit? It is unthinkable that the LTnion Government in
charge of communications, say, the railways, post office, telegraph, etc.,
should collect its dues in different currencies peculiar to the different Pro¬
vinces and States of the Union. Nor is it possible for the Union to organize
its navy, army and the air fence without paying them in a uniform coin.
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724
FRAMING OF INDIA’S CONSTITUTION
As is the case with any constitutional instrument, it is permissive to imply
incidental, ancillary or resultant powers from other powers expressly con¬
ferred on an organ of Government by the Constitution. The case under
consideration is pre-eminently the case where such a power has to be in¬
ferred. There is more justification for such an inference than even in the
leading case of McCulloch v. Maryland, where the Supreme Court held that
the Congress has the power to create banking corporations under authority
of the United States as flowing from its power to declare war, to conduct
defence and the implied power to borrow for purposes of defence. The
other instances where powers were implied have already been referred to.
One case which calls for specific mention is the legal tender case. The only
clauses bearing upon currency in the United States Constitution is clause 5,
section 8 of article I which empowers the Congress to coin money, to regulate
the value thereof and of foreign coin. The other clause connected with clause
5 is clause 2. enabling the Congress to borrow money on the credit of the
United States. There is no power conferred in terms as to issue bills of
credit and to make legal tender. Article I, section 10 is a negative pro¬
vision preventing a State from coining money and remitting bills of credit.
This provision itself was not free from doubt by reason of another clause—
article I, section 10 (1)—which provides that no State shall make anything
but gold and silver coins a tender in payment of debts. In spite of the
wording of article I, the Supreme Court held that the power of the Congress
over money was exclusive. But this did not solve the currency problem,
especially with reference to paper money and making the same legal tender.
In 1869, the United States Supreme Court held that the Federal Government
has the power to issue bills of credit at any rate without making them legal
tender. Having regard to the fact that bills of credit are not merely instruc¬
tions for the payment of money at a future date but intended to circulate
as money, it is doubtful whether the position taken up by the Supreme
Court that the Congress might issue bills of credit without making them
legal tender is sound. But the point is now only erf academic interest in
view of a later decision of the Supreme Court in which the court held that
the United States Government, though not expressly given the power to
prescribe what shall be legal tender, has the implied power from the express
powers to make war, to borrow, and to coin money and the implied power
to issue bills of credit. The point is now governed by the decision of the
Supreme Court in 110 U. S. 421, reversing an earlier decision of the court
in 1869 (8 Wallace 603). In 1933, the Congress enacted a fresh law enabling
even Gold clauses to be fulfilled by paper money, vide the history set out
in Willis, p. 399. The question will have to be viewed not merely from the
internal aspect of India, but also from the point of view of her foreign
relations. How are foreign relations to be conducted if there are to be
multiple currencies for the different States and Provinces of India and how
is the exchange ratio to be determined?
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (l)
(O) RAISING OF TAXES
725
The expression ‘Finances' required for the above subjects raises a point
of some difficulty. It is not a general power to raise finances or power to
levy taxes but a power to levy taxes for particular subjects. There is some
authority for the proposition that the qualifying phrase may limit the power,
but as it is not possible to equate the finances raised with the amount required
for the particular subject if in substance and in the main the tax is raised for
the particular subject, a provision may be made for the handing over of
any effective or real surplus to the Provinces concerned in view of the absence
of a general power of appropriation as in America. The Australian High
Court has recently ruled that the Parliament cannot enact the Pharmaceutical
Benefits Act for the supply of chemists without charge to the public in
the State and imposing a duty on the medical practitioners to afford relief
to the States as that would in effect enable the Federal Government to
arrogate to itself the functions of the State.
Under the scheme of distribution of powers in Canada, banking is a
Dominion subject and civil rights is a Provincial subject. The Privy Council
held that in the exercise of the power over civil rights the Province cannot
deal with undisposed effects of a banking institution and as ancillary to its
power over banking the Dominion has the power to deal with the surplus.
(h) conclusion
An examination of the decisions in all the federal constitutions clearly
points to the conclusion that under the guise of incidental, implied or result¬
ing powers a federal Government cannot encroach upon the powers
expressly reserved to the Provinces. The power exercised may be incidental
to the exercise of another power in terms vested in the Union or the Centre
under the Constitution. While it may be possible to bring the subject of
currency, the power to borrow on the credit of the Union and even banking
in its aspect as a national institution under the head of powers incidental
to defence and other powers expressly conceded to the Union as also the.
power to acquire and govern new territories, the governance of the capital
of the Union and the power to establish a court for resolving conflicts between
the Union and its units that must inevitably arise in the working of a federal
constitution, it will be difficult to bring the various other items in the Central
and the Concurrent lists as being implied in, or incidental to, or resulting
from, the powers expressly granted to the Union.
(in) A NOTE ON THE AMBIT OF DEFENCE POWER BY B. N. RAU
March 4, 1947
[The portions in square brackets are explanatory notes not intended to
be included in the final definition.]
47
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726
FRAMING OF INDIA’S CONSTITUTION
Follows Grif¬
fith C. Ts ,
definition quot¬
ed in the
pamphlet on
Union sub¬
jects (I). t
Follows as
far as
possible the
language of
entry 1 of the
existing
Federal
List.*
Follows as
far as
possible the
language of
entry 1 of the
existing
Federal
List*
The term
“governance"
is taken
from section
mm of
the existing
Act.*
Entry 34 of
the Federal
List.*
In part new and
in part entry 36
of the Federal
List.*
Entry 2 of
the Federal
List.*
Entry 2 of
the Federal
List*.
Entry 29 of the
Federal List.*
“Defence” means the defence of the Union and of every
part thereof and includes generally all preparations for
defence [This seems a better phrase than “preparation for
war in times of peace” which may, to some minds, sug¬
gest preparation for a war of aggression by the Union.]
as well as all such acts in times of war as may be condu¬
cive to its successful prosecution. [It is unnecessary
to say “successful prosecution under modem conditions?’.]
In particular, “Defence” includes—
(1) the raising, training, maintenance, control and
employment of the naval, military and air forces
of the Union, and of any other armed forces in the
Union [e.g., the Indian Territorial Force constituted
by the Act of 1920], not being forces raised for
employment in Indian States or military or armed
police maintained by the Provincial Governments;
(2) the governance of any armed forces, which do
not form part of, but are attached to, or operating
with, any of the naval, military or air forces of
the Union [This is meant to provide, e.g., for the
discipline, etc., of the Indian States forces when
attached to the Union army.];
(3) development of defence industries;
(4) control of atomic energy and of the minerals con¬
cerned in its production;
(5) Naval, military and air force works;
(6) local self-government in cantonment areas (not being
cantonment areas of Indian State troops), the regulation
of house accommodation in such areas, and, except
within an Indian State, the delimitation of such areas;
(7) arms, fire-arms, ammunition;
tSee Document No. 26(i).
♦Reference is to the Government of India Act, 1935.
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (i) 727
(8) explosives. Entry 30 of
the Federal
List*
In addition to the above definition, there should be a
section in the body of the Constitution on the lines of
sections 102 and 126-A of the Government of India Act,
1935, the object of which, broadly speaking, is to give
the Union plenary powers whenever its security is gravely
threatened, whether by war or internal disturbance.
(IV) A NOTE ON UNION SUBJECTS (OPTIONAL LIST) BY B. DAS
April 17, 1947
1. Government of India Act of 1935:
Pert l — (a) Federal list
Item No. 14: Survey erf India; geological, botanical and zoological
surveys.
Item No. 15: Ancient and historical monuments, archaeological
sites, etc.
Item No. 51: Establishment of standard weights and measures.
(b) List No. Ill—Concurrent list
Items Nos. 1, 4 and 5: Legislation on judicial system and judicial
procedure, and civil code, evidence and oaths.
Item No. 6: Marriage and divorce
Part II—Unemployment insurance
2. (a) Establishment of national economic plan of the Union.
(b) Insurance.
(c) A uniform system of national economic statistics.
3. (a) Inter-State banking.
(b) Appointment of the Provincial Auditor-General— see section 167,
Government of India Act, 1935.
4. Development of excluded and partially excluded areas.
* Reference is to the Government of India Act, 1935.
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PROCEEDINGS/MINUTES OF THE UNION POWERS
COMMITTEE
March-April 1947
[The first meeting of the Union Powers Committee was held on March
2, 1947; Nehru was elected its Chairman. The committee proceeded
to consider the subjects seriatim on the basis of the list of items pre¬
pared by K. M. Munshi. The subject of ‘defence’ proved somewhat
difficult; it was agreed that B. N. Rau should draft a formula defining
the ambit of the defence power in the light of the discussions. The com¬
mittee continued its deliberations on March 3 and 4. Among other
things, it reconsidered the subject of ‘defence’ in the light of the for¬
mula drafted by B. N. Rau [see Document No. 28(iii)].
The committee went over the entire ground again after two represen¬
tatives of the Princely States were nominated to it on April 10. It also
appointed a sub-committee consisting of K. M. Munshi, N. Gopala-
swami Ayyangar and V. T. Krishnamachari, to reexamine certain
items tentatively settled earlier. The suggestions made by the sub¬
committee in regard to the position of the Princely States were accept¬
ed by the Union Powers Committee. Meeting again on April 16 and 17,
the committee reviewed the scope of the Union powers and with some
modifications adopted the report. One significant amendment was
made at the instance of the representatives of the Princely States: they
were strongly opposed to the imposition of a uniform standard of
taxation throughout the Union since the level of advancement and other
conditions in the matter of industrial development were very dissimi¬
lar as between British India and the Princely States. A summary of
the proceedings and the minutes of the meetings of the Union Powers
Committee, the draft report of the committee and the amendment
sought by the representatives of the Princely States and Alladi Krishna-
swami Ayyar thereto as also the result of the discussions of the
sub-committee are reproduced below.]
(i) SUMMARY OF THE PROCEEDINGS OF THE UNION POWERS
COMMITTEE MEETING
March 2, 1947
The Union Powers Committee held its first meeting in Committee Room
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proceedings/minutes of the union powers committee 729
No. 63, Council House, at 3 p.m. oh Sunday the 2nd March, 1947.
The following members were present: The Hon’ble Pandit Jawaharlal
Nehru; Sir Alladi Krishnaswami Ayyar; Bakshi Sir Tek Chand; Shri K.
M. Munshi; Shri Jairamdas Daulatram; Shri M. R. Masani; Dr. Pattabhi
Sitaramayya; The Hon’ble Sir N. Gopalaswami Ayyangar; Shri Biswanath
Das; Sir B. N. Rau; and the Secretary, Constituent Assembly of India.
The Hon’ble Pandit Jawaharlal Nehru, who was elected Chairman,
presided.
Commencing the proceedings, the Chairman observed that it was de¬
sirable for them to complete their work before certain other developments
took place. He said that a certain kind of agreement had been arrived
at that morning with the States and that there was a chance of the States
coming. Though it was not yet clear, it was very probable that the
Muslim League might keep out and, possibly, in the terms of the Cabi¬
net Mission’s Statement, they might have to be given a chance to come
in too. They would have to wait a little more to come to final
conclusions.
Continuing, he said that the question was whether there should be a
strong Centre and if so what powers it should have.
Sir Tek Chand pointed out that if the Centre had also currency and
customs, it might be said to be strong. The question was whether there
should be, as under the Government of India Act, 1935, a concurrent
list of subjects and whether the Centre could let some units enjoy wider
powers than the rest.
Sir B. N. Rau referred to the Australian example where the Provinces
were allowed to come in with additional subjects. But the Chairman
pointed out that the question was raised before the Cabinet Mission and
that they rejected it and added that, even though the Muslim League might
not join, they were not necessarily bound by those limitations. But then,
he said, there was die limitation that the Constitution applied only to the
participating ‘areas’ which meant that possibly the Punjab and Bengal
must be partitioned with the Sikhs remaining out. They could not make
the Centre more important nor should they make ineffective constitutions.
That was principle number one. He wanted to know whether they could
have a minimum compulsory list, as contemplated in the May 16 Statement
and another list which, if the units were willing, they could transfer to
the Centre.
Shri Jairamdas Daulatram said that they could make the voluntary list
a bit elastic or they could give the Centre all the powers which, under the
Act of 1935, the Government of India now enjoyed.
Sir Alladi Krishnaswami Ayyar pointed out that the Centre had inherent
powers and enquired whether they were going to differentiate between one
set of Provinces and another.
Sir Gopalaswami Ayyangar observed that the position as regards the
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730
FRAMING OF INDIA’S CONSTITUTION
States had to be separately examined with the representatives of the States.
Some of than, he pointed out, had armed forces and some had railways
and were dependent on the income therefrom.
Sir Tek Chand suggested that they could take the subjects one by one
for preliminary discussion.
The Chairman, at this stage, drew attention to a note received from
Sr B. N. Rau which dealt with the examples of New Zealand and Austra¬
lia which had a joint secretariat for defence and foreign policy and stated
that they could possibly develop their relations with the neighbouring
countries of Bhutan and Ceylon on those lines.
The Chairman referred to the recent speech of Dr. Evatt of Australia
wherein he had desired that Indian representatives and Australian represen¬
tatives might meet and discuss specific problems and suggested that this
might be looked into later on.
Then the committee took the subjects seriatim. The first subject dis¬
cussed was foreign affairs. Shri Munshi who had prepared a list coming
under this head, read out the items that pertained to foreign affairs. The
Chairman was of opinion that the items should be short and succinct and
not too elaborately worded. What constituted trade and commerce came
in for a lengthy discussion. Sir AQadi Krishnaswami Ayyar referred to
the decisions in 5S, 608, 58 and 528 in the Commonwealth Law Reports
where the whole question of external affairs was dealt with and would prefer
the adoption of the phraseology used therein. The Australian Constitu¬
tion was referred to by Sir N. Gopalaswami Ayyangar under which indi¬
vidual States had the power to enter into trade with other countries. Sir
Alladi said that this was subject to section 109 of the Constitution under
which where the law of the State was inconsistent with the law of the
Commonwealth the latter would prevail.
Sir Gopalaswami Ayyangar enquired whether they were including
foreign commerce under foreign affairs and said that it was important
that they should exclude external trade from foreign affairs and definitely
include declaration of war and peace and treaties with foreign powers.
The Chairman pointed out the need for making the list brief and not
lengthy and added that, as loose phrases might give rise to disputations
later on, they might even add brief definitions to each item.
Sir Tek Chand stated that they should fortify their selection of subjects
with precedents and legal decisions. He said that items such as ’external
affairs’, etc., had been bodily copied from the Government of India Act,
1935.
Sir Alladi mentioned that those items were to be found in four or five
lists in the Act and, citing Canada, observed that, in regard to the vexed
question erf the implementation of treaties, the Union must have power and
that the Union must be in a position to overrule any Provinces in respect
of those matters.
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PROCEEDINGS / MINUTES OF THE UNION POWERS COMMITTEE
731
Sir Tek Chand then read out the following items from his list:
Right to declare war and peace.
Entering into treaties with other countries. Ambassadorial, diplomatic and
consular representation.
Immigration and emigration.
Extradition, naturalization, and entry and protection of Indian nationals
in foreign countries.
Detention of foreigners.
Foreign jurisdiction.
International conventions—participation in them and so on.
Right to regulate trade and commerce with foreign nations.
Sir Alladi observed that they should also take power to regulate trade
between States inter se, as they had done in Australia.
Sir Tek Chand continuing, added:
Tariffs, customs, revision of boundaries, foreign exchange and regula¬
tion of foreign corporations.
Shri K. M. Munshi desired to add to these:
External economic and trade relations.
Entering into agreements and treaties with foreign powers.
Extradition including surrender of criminals.
Powers of quarantine, and maritime rights.
Fisheries and fishing beyond territorial waters.
Foreign exchange, transfer of funds and loans raised in foreign countries.
Passport,
Foreign corporations, foreign trade and commerce.
Sir Alladi observed that corporations and others would come under ex¬
ternal affairs and that they should not put in their Constitution under what
conditions they would permit foreign corporations to function in the
country.
Sir Tek Chand considered it necessary that in the matter of the regula¬
tion of foreign capital, they should make it clear whether the units had
freedom or whether they were subject to control by the Centre.
The Chairman was not sure whether a separate item “foreign corpora¬
tions” was necessary, but said that the regulation of foreign capital would
have to be done both by the Centre and the units, despite the possibility
of conflicts arising.
Shri K. M. Munshi continuing, added:
Foreign currency.
Participation in international conferences.
Implementation of treaties.
Protection of Indians abroad.
Piracy and offences committed on high seas.
The Chairman pointed out that, when the Centre was going to regulate
foreign policy, it would have control over foreign exchange and other things
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FRAMING OF INDIA’S CONSTITUTION
and that protection of Indians abroad might be presumed. He doubted
whether ‘diplomatic representation’ was the proper expression to be used
and said that the correct technical expression might be put in.
Sir Alladi observed that piracy and punishment for offences committed
on the high seas were covered by the term ‘admiralty’.
Shri M. R. Masani wanted to know who would have the responsibility
for the implementation of labour agreements by passing the necessary
legislation and Sir Gopalaswami Ayyangar stated that the practice in the
United States was that the treaties entered into by them became the law
of the land.
There was some further discussion after which the following items were
tentatively agreed upon to fall under the head ‘external affairs’:
1. Diplomatic relations with other countries and consular representa¬
tion.
2. The United Nations Organisation.
3. War and peace.
4. Entering into and implementing of treaties and agreements with
other countries.
5. Participation at international conferences, associations and other
bodies and implementing of decisions made thereat.
6. Trade and commerce with other countries.
7. Foreign loans.
8. Naturalization and aliens.
9. Extradition (Expulsion and detention?).
10. Immigration and emigration.
11. Port quarantine.
12. Fishing and fisheries beyond territorial waters.
13. Passports and visas.
14. Foreign jurisdiction.
15. Admiralty jurisdiction.
The next subject discussed was defence. Shri Munshi read out the
tentative list prepared by him as generally falling under this head. Sir
Alladi Krishnaswami Ayyar was for not defining defence power as under
modern warfare defence power extended over such a variety of subjects that
it was better to avoid a definition. Defence power had been construed by all
the States to embrace every aspect of national life, and referred to a decision
of the High Court of Australia where it was held that even resettlement
in life of people who were employed in the war was part of the defence
power. He held that the Government of India Act would not be of any help
because there was no general defence power given to India. The Chairman
was of opinion that there should only be a general phrase about defence
making it comprehensive, and that every attempt should be made to
avoid details. The manufacture of arms, fire-arms, ammunitions and ex¬
plosives was discussed at length, but Sir B. N. Rau pointed out that this
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PROCEEDINGS / MINUTES OF THE UNION POWERS COMMITTEE
733
had no specific mention either in the Australian or the Canadian Constitu¬
tion. The right to bear arms in a Province would, in the opinion of Shri
Masani. be taken away by the Centre, whereupon Sir Alladi said that the
right of individual defence had nothing to do with the general defence of
the country.
Bakshi Sir Tek Chand said that it would not be enough merely to have
an item called ‘Army, navy and air force.’ Even the addition of the
item ‘Recruitment and raising of the army' did not make the position
clear. He added that there was a feeling that the Provinces should be
allowed to raise armies.
The question whether raising of local militia which in modern warfare
was an offensive weapon also could be left to the Provinces as also the
question of the States having armies at present was considered at
length.
Shri K. M. Munshi stressed the need for retaining with the Centre the
power to legislate on the question of raising armies.
The Chairman pointed out that the fact that defence must rest with the
Centre had been admitted. They need not complicate the matter by trying
to solve the problem of the scope of defence. They might confine their
attention to the question as to how far the States could have defence forces
and how far the Centre. He was certain that there could not be an indepen¬
dent local militia and that defence meant recruitment, equipment, finance
and so on.
Sir Gopalaswami Ayyangar said that if they assigned defence exclusive¬
ly to the Centre, they would have to bear in mind the existing practice in
the States.
The Chairman said that the States, when there was paramountcy, had
the right to maintain armed forces. They had to remember the fact that
the Act erf 1935 did not contemplate independence.
Shri Jairamdas Daulatram was of the opinion that the units could share
with the Centre the right to raise armies for the defence of India.
The Chairman, intervening, said that it should be subject to the exclusive
right of the paramount power to control them.
Shri K. M. Munshi raised the question of control of materials which
could be used for making arms, ammunition and other articles for warfare.
This question was discussed at length.
He suggested the following head:
Defence: naval, military and air forces; arms, ammunition and explo¬
sives: materials from which high explosives are manufactured.
Sir B. N. Rau referred to the Australian Constitution where defence
included everything in relation to national defence which Commonwealth
Parliament might deem advisable to include.
Sir Alladi pointed out that at this stage all that they should indicate
was that defence power was a very comprehensive power as under modern
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734
FRAMING OF INDIA’S CONSTITUTION
conditions it extended to a variety of subjects; it might certainly include
even local militia that might be maintained by a State. It was an all-
embracing power. At this stage they need not go into the thing as if they
were putting in something in a statute. If there was anything very difficult
to define, it was defence.
It was then suggested that Sir B. N. Rau might draft a formula* in the
light of what had been observed in the committee, defining defence.
The committee then adjourned till 4-30 p.m. on Monday the 3rd March,
1947.
(n) MINUTES OF THE UNION POWERS COMMITTEE MEETINGS
March 3-4, 1947
The Union Powers Committee met on the 3rd and 4th of March. Pandit
Jawaharlal Nehru was elected Chairman. Dr. Syama Prasad Mookerjee
was present by special invitation.
The committee considered the scope of Union powers in accordance
with the Cabinet Delegation’s Statement of the 16th May 1946 and came
to the following provisional conclusions:
DEFENCE
2. “Defence” means the defence of the Union and of every part thereof
and includes generally all preparations for defence as well as such acts in
times of war as may be conducive to its successful prosecution. In particular
“defence” includes—
(1) The raising, training, maintenance and control of naval, military
and air forces and employment thereof for the defence of the Union
and the execution of the laws of the Union and its units;
(2) Defence industries;
(3) Naval, military and air force works;
(4) Local self-government in cantonment areas, the constitution and
powers within such areas of cantonment authorities, the regulation
of house accommodation in such areas and the delimitation of such
areas;
(5) Arms, fire-arms, ammunition and explosives;
(6) Atomic energy, and mineral resources essential to its production.
In addition to the above particulars, there should be a section in the
body of the Constitution on the lines of sections 102 and 126-A of the
Government of India Act, 1935, the object of which, broadly speaking,
is to give the Union plenary powers whenever its security is gravely
threatened.
•See Document No. 28(iii).
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PROCEEDINGS / MINUTES OF THE UNION POWERS COMMITTEE
735
FOREIGN AFFAIRS
3. “Foreign affairs” means external relations of the Union and in particular
indudes the following subjects:
(1) Diplomatic, consular and trade representation.
(2) United Nations Organisation.
(3) Participation in international conferences, associations and other
bodies and implementing of decisions made thereat.
(4) War and peace.
(5) The entering into and implementing of treaties and agreements with
other countries.
(6) Trade and commerce with foreign countries.
(7) Foreign loans.
(8) Naturalization and aliens.
(9) Extradition.
(10) Passports and visas.
(11) Foreign jurisdiction.
(12) Admiralty jurisdiction.
(13) Piracies, felonies committed on the high seas and offences comit-
ted in the air against the law of the nations.
(14) Admission into, and emigration and expulsion from, the Union.
(15) Port quarantine.
(16) Import and export across customs frontiers as defined by the
Union Government.
(17) Fishing and fisheries beyond territorial waters.
COMMUNICATIONS
4. The scope of “communications” was defined as follows:
Communications and, in particular, the following:
(1) Airways.
(2) Highways and waterways declared by the Union to be Union
highways and waterways.
(3) Shipping and navigation on inland waterways, declared by the
Union to be Union waterways as regards mechanically propelled
vessels, and the rule of the road on such waterways; carriage of
passengers and goods on such waterways.
(4) Posts and telegraphs, including telephones, wireless, broadcasting,
and other like forms of communication.
(5) Federal railways; the regulation of all railways other than minor
railways in respect erf safety, maximum and minimum rates and
fares, station and service terminal charges, interchange of traffic and
the responsibility of railway administrations as carriers of goods and
passengers; the regulation of minor railways in respect of safety and
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FRAMING OF INDIA’S CONSTITUTION
the responsibility of the administrations of such railways as carriers
of goods and passengers.
(6) Maritime shipping and navigation, including shipping and naviga¬
tion on tidal waters; admiralty jurisdiction.
(7) Major ports, that is to say, the declaration and delimitation of
such ports, and the constitution and powers of port authorities
therein.
(8) Aircraft and air navigation, the provision of aerodromes, regula¬
tion and organization of air traffic and of aerodromes.
(9) Lighthouses, including lightships, beacons and other provision for
the safety of shipping and aircraft.
(10) Carriage of passengers and goods by sea or by air.
FINANCE
5. The expression “the powers necessary to raise the finances required”
for the Union subjects, in the Cabinet Delegation’s Statement, was held to
authorise the imposition of the following taxes by the Union:
(1) Duties of customs, including export duties.
(2) Excise duties.
(3) Corporation tax.
(4) Taxes on income other than agricultural income.
(5) Taxes on the capital value of the assets, exclusive of agricultural
land, of individuals and companies; taxes on the capital of companies.
(6) Duties in respect of succession to property other than agricultural
land.
(7) Fees in respect of any of the matters in the list of Union powers,
but not including fees taken in any court.
6. The committee also considered the scope of implied powers and
came to the conclusion that the following powers fall within this category:
(1) Union judiciary.
(2) Acquisition of property for the purposes of the Union.
(3) Union agencies and institutes for the following purposes, that is
to say, for research, for professional or technical training, or for the
promotion of special studies.
(4) Census.
(5) Offences against laws with respect to any of the matters in the list
of Union powers.
(6) Enquiries and statistics for the purposes of the Union.
(7) Reserve Bank of India.
(8) Property of the Union and the revenue therefrom.
(9) Public debt of the Union.
(10) Currency, coinage and legal tender.
(11) All subjects in respect of Union areas.
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PROCEEDINGS / MINUTES OF THE UNION POWERS COMMITTEE 737
7. The committee considered that the following subjects should also be
included in the Union list, but where exactly they should come in was left
to be discussed later:
(1) The recognition throughout the Union of the laws, the public Acts
and records and the judicial proceedings of the State.
(2) Quarantine—the prevention of the extension from one unit to
another of infectious or contagious diseases or pests affecting men,
animals or plants.
(3) Patents; trade marks; trade designs; copyright.
(4) Planning.
(5) Powers to deal with grave economic emergencies.
8. The Chairman said that the conclusions reached at the meeting were
purely provisional and would have to be considered again. There was also
the possibility of some overlapping between these lists and the list of funda¬
mental rights. It was, therefore, decided that the Union Powers Committee
should meet immediately after the Fundamental Rights Sub-Committee
and possibly have a joint meeting with that sub-committee.
(m) RESULT OF THE DISCUSSIONS OF THE SUB-COMMITTEE
April 1947
Present: (1) Mr. K. M. Munshi; (2) The Hon’ble Sir N. Gopalaswami
Ayyangar; (3) Sir V. T. Krishnamachari.
The sub-committee came to the following conclusions:
1. Item 4{iv): This item should be dealt with in two parts.
(a) Posts and Telegraphs
The following proviso is to be added to this item:
Provided that the rights existing in favour of any individual State/unit
at the date of the establishment of the Union shall be preserved to the
unit till the same are modified or extinguished by agreement between the
Union and units concerned, subject however to the power of the Union
to make laws for the regulation and control of the same.
(6) Telephones, Wireless, etc.
This part of the item should be modified as follows:
Union telephones, wireless broadcasting and other like forms of com¬
munication; the regulation and control of all other telephones, wireless,
broadcasting and other like forms of communication.
2. Item 4(viii)—Aircraft and Air Navigation: This item should be recast
as follows:
Regulation, organization and control of aircraft and air navigation, etc.
3. Item 5 — Finance: The following should be added at the end of the
list of taxes suggested under this item:
With regard to the levy of above taxes in a State unit, we recommend
the following :
(i) In cases in which such levy cripples the existing resources of any
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738
FRAMING OF INDIA’S CONSTITUTION
State unit, the Union should compensate the State unit concerned for
a specified period.
(ii) A provision will have to be incorporated in the Constitution on the
lines of section 139, sub-sections 2 and 3, enabling the State unit to pay the
equivalent of the net proceeds of a tax in the manner indicated therein, for
a temporary period.
(iii) This is in addition to the recommendation already made by the
Fundamental Rights Sub-Committee in regard to internal customs duties.
Accordingly, in the Constitution, a machinery should be provided and
procedure prescribed for implementing the above recommendation.
(IV) THE DRAFT REPORT
April 1947
We, the undersigned, members of the committee appointed by the reso¬
lution of the Constituent Assembly of the 25th January to examine the
scope of Union powers, have the honour to submit this our Report. Sir
V. T. Krishnamachari and Sir B. L. Mitter were nominated to the committee
on April 10, 1947 and the rest of us have had an opportunity of going over
the entire ground again with them.
2. We consider that the scope of the subjects, defence, foreign affairs and
communications in the Cabinet Delegation’s Statement of the 16th May
covers the following:
A —“Defence” connotes the defence of the Union and of every part
thereof and includes generally all preparation for defence, as well as all
such acts as may be conducive to its successful prosecution in times of war,
and to effective demobilization after its termination. In particular,
“defence” includes:
(1) The raising, training, maintenance and control of naval, military
and air forces and employment thereof for the defence of the
Union and the execution of the laws of the Union and its units;
the strength, organization and control of the existing armed forces
raised and employed in Indian States;
(2) Defence industries;
(3) Naval, military and air force works;
(4) Local self-government in cantonment areas, the constitution and
powers within such areas of cantonment authorities, the regulation
of house accommodation in such areas and the delimitation of such
areas;
(5) Arms, fire-arms, ammunition and explosives;
(6) Atomic energy, and mineral resources essential to its production.
We recommend further that in order to enable the Union Government
effectively to discharge its responsibility for defence, it should be vested
with powers similar to those contained in sections 102 and 126-A of the
Government of India Act, 1935.
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PROCEEDINGS / MINUTES OF THB UNION POWERS COMMITTEE 739
B —“Foreign affairs” connotes all matters which bring the Union into
relations with any foreign country and in particular includes the following
subjects:
(1) Diplomatic, consular and trade representation;
(2) United Nations Organisation;
(3) Participation in international conferences, associations and other
bodies and implementing of decisions made thereat;
(4) War and peace;
(5) The Ente rin g into and implementing of treaties and agreements with
other countries;
(6) Trade and commerce with foreign countries;
(7) Foreign loans;
(8) Naturalization and aliens;
(9) Extradition;
(10) Passports and visas;
(11) Foreign jurisdiction;
(12) Admiralty jurisdiction;
(13) Piracies, felonies committed on the high seas and offences com¬
mitted in the air against the law of nations;
(14) Admission into, and emigration and expulsion from, the Union;
(15) Port quarantine;
(16) Import and export across customs frontiers as defined by the
Union Government;
(17) Fishing and fisheries beyond territorial waters.
C—The term “communications”, although it is wide enough to cover
any connection between places, should, for the present purposes of the
Union, in our opinion, include the following:
(1) Airways;
(2) Highways and waterways declared by the Union to be Union
highways and waterways;
(3) Shipping and navigation cm inland waterways, declared by the
Union to be Union waterways, as regards mechanically propelled
vessels, and the rule of the road on such waterways; carriage of
passengers, and goods on such waterways;
(4) (a) Posts and Telegraphs, provided that the rights existing in favour
of any individual State unit at the date of the establishment of the
Union shall be preserved to the unit till the same are modified or
extinguished by agreement between the Union and units concerned,
subject however to the power of the Union to make laws for the
regulation and control of the same;
(b) Union telephones, wireless, broadcasting and other like forms of
communication; the regulation and control of all other telephones,
wireless, broadcasting and other like forms of communication;
(5) Union railways; the regulation of all railways (other than minor
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740
FRAMING OF INDIA’S CONSTITUTION
railways) in respect of safety, maximum and minimum rates and
fares, station and service terminal charges, interchange of traffic
and the responsibility of railway administrations as carriers of
goods and passengers:
(6) Maritime shipping and navigation, including shipping and naviga¬
tion on tidal waters; admiralty jurisdiction;
(7) Major ports, that is to say, the declaration and delimitation of such
ports, and the constitution and powers of port authorities therein:
(8) Aircraft and air navigation: the provision of aerodromes, regula¬
tion and organization of air traffic and of aerodromes;
(9) Lighthouses, including lightships, beacons and other provision for
the safety of shipping and aircraft;
(10) Carriage of passengers and goods by sea or by air;
(11) Union meteorological services;
(12) Inter-unit quarantine.
D —The expression “the powers necessary to raise the finances required”
for the Union subjects in the Cabinet Delegation’s Statement necessarily
includes the power to raise finances by taxation. In existing circumstances,
we recommend the following sources erf revenue for the Union:
(1) Duties of customs, including export duties;
(2) Excise duties;
(3) Corporation tax;
(4) Taxes on income other than agricultural income;
(5) Taxes on the capital value of the assets, exclusive of agricultural
land, of individuals and companies; taxes on the capital of com¬
panies;
(6) Duties in respect of succession to property other than agricultural
land;
(7) Estate duty in respect of property other than agricultural land;
(8) Fees in respect of any of the matters in the list of Union powers,
but not including fees taken in any court other than the Union Court.
With regard to the levy of above taxes in a State unit other than sea cus¬
toms, we recommend the following:
(i) Where, on account of the existing incidence of taxes in a State
unit, the imposition of the above taxes at the rates prescribed by
the Union is likely to cause hardship to any State unit, the Union
may enter into special arrangements with the unit for a specified
period;
(ii) A provision will have to be incorporated in the Constitution on the
lines of section 139. sub-sections 2 and 3, enabling the State unit
to pay the equivalent of the net proceeds of a tax in the manner
indicated therein, for a temporary period.
Accordingly, in the Constitution, machinery should be provided and
procedure prescribed for implementing the above recommendation.
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PROCEEDINGS / MINUTES OF THE UNION POWERS COMMITTEE 741
This is in addition to the recommendations of the Sub-Committee on
Fundamental Rights regarding internal customs duties.
3. It is impossible to enumerate the powers implied or inherent in or
resultant from the express powers of the Union. We think that in any
case the following powers come within the category:
(1) Union judiciary;
(2) Acquisition of property for the purposes of the Union;
(3) Union agencies and institutes for the following purposes, that is
to say, for research, for professional or technical training, or for the
promotion of special studies;
(4) Census;
(5) Offences against laws with respect to any of the matters in the list
of Union powers;
(6) Enquiries, surveys and statistics for the purposes of the Union;
(7) Industrial disputes concerning Union employees;
(8) Reserve Bank of India;
(9) Property of the Union and the revenue therefrom;
(10) Public debt of the Union;
(11) Currency, coinage and legal tender;
(12) All subjects in respect of Union areas;
(13) Powers to deal with grave economic emergencies in any part of
the Union affecting the Union.
4. We are of the opinion that provision should be made in the new
Constitution for the recognition throughout the Union of the laws and
public Acts and records of the judicial proceedings of the units and for
judgments and orders delivered in one unit being enforced in other units.
We note that a provision to this effect has already been made in the list of
fundamental rights.
5. In addition to the above subjects which, in our view, come within
the scope of Union powers in accordance with the Cabinet Delegation’s
Statement, we hope that the following subjects will also be included in the
Union list by agreement:
(1) Insurance;
(2) Company law;
(3) Negotiable instruments;
(4) Patents, trade marks, trade designs, copyrights;
(3) Planning.
Such an arrangement will ensure uniformity throughout the territories of
the Union in matters of patents, company law, negotiable instruments and
insurance law. We have included planning in the above list for the reason
that although authority may rest in respect of different subjects with
the units, it is obviously in their interest to have a co-ordinating machi¬
nery to assist them.
6. We also recommend the insertion in the Constitution of a provision on
48
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742
FRAMING OF INDIA’S CONSTITUTION
the lines of articles (xxxvii) and (xxxviii) of section 51 of the Australian
Constitution Act.
(V) PARAGRAPH SUGGESTED BY THE REPRESENTATIVES OF PRINCELY
STATES (B. L. MITTER AND V. T. KRISHNAMACHARl) AND ALLADI
KRISHNASWAMI AYYAR TO REPLACE THE LAST PORTION OF
PARAGRAPH 2 OF THE DRAFT REPORT
We realize that, in the matter of industrial development, the States
are in varying degrees of advancement and conditions in British India
and the States are in many respects dissimilar. Some of the above
taxes are now regulated by agreements between the Government of
India and the States. We, therefore, think that it may not be possible
to impose a uniform standard of taxation throughout the Union
all at once. Keeping, however, the aim of ultimate uniformity in view, we
recommend that, for the first fifteen years after the establishment of the
Union, the incidences, levy realization and apportionment of the above taxes
in the State units shall be subject to agreements between them and the Union
Government. Provision should accordingly be made in the Constitution for
implementing the above recommendation.
(VI> MINUTES OF THE MEETINGS OF THE UNION POWERS COMMITTEE
April 16 and 17, 1947
. The Union Powers Committee met on the 16th and 17th April. Barring
Shri Sarat Chandra Bose, Bakshi Sir Tek Chand and Shri D. P. Khaitan
who were absent on both days, and Shri M. R. Masani who could not attend
on the second day, all the members of the committee were present. Dr.
S. P. Mookerjee was present by special invitation on the 17th April to take
the {dace of Shri Sarat Chandra Bose.
The committee further considered the scope of the Union powers and
adopted the report annexed hereto.*
♦See Document No. 30.
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FIRST REPORT OF THE UNION POWERS COMMITTEE
April 1947
[The first Report of the Union Powers Committee was submitted to the
President of the Constituent Assembly on April 17, 1947. It was mainly
concerned with enumerating matters which, in the opinion of the com•
mittee, fell within the ambit of the subjects assigned to the Union under
the Cabinet Mission's Plan and of the implied, inherent and resultant
powers of the Union. Gopalaswami Ayyangar, one of the prominent
members of the committee, was not satisfied with certain aspects of the
recommendations made by the committee and sent on April 18 a note
containing his comments on the report. The report was presented to
the Constituent Assembly on April 28. The consideration of the report
was deferred and it was agreed that the committee might submit a sup¬
plementary report in the light of the situation that might eventually
develop. The texts of the report and Gopalaswami Ayyangafs note are
reproduced below.]
(i) TEXT OF THE REPORT
April 17. 1947
We, the undersigned, members of the Committee appointed by the reso¬
lution of the Constituent Assembly of the 25th January to examine the scope
of Union powers, have the honour to submit this our Report. Sir V. T.
Krishnamachari and Sir B. L. Mitter were nominated to the committee on
April 10, 1947, and the rest of us have had an opportunity of going over
the entire ground again with them.
2. We consider that the scope of the subjects, defence, foreign affairs,
and communications, in the Cabinet Delegation’s Statement of the 16th May
covers the following:
A — “Defence” connotes the defence of the Union and of every part there¬
of and includes generally all preparation for defence, as well as all such
acts in times of war as may be conducive to its successful prosecution and
to effective demobilisation after its termination. In particular, “defence”
includes:
(1) The raising, training, maintenance and control of naval, military
and air forces and employment thereof for the defence of the Union
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744
FRAMING OF INDIA’S CONSTITUTION
and the execution of the laws of the Union and its units; the strength,
organization and control of the existing armed forces raised and em¬
ployed in Indian States;
(2) Defence industries;
(3) Naval, military and air force works;
(4) Local self-government in cantonment areas, the constitution and
powers within such areas erf cantonment authorities, the regulation of
house accommodation in such areas and the delimitation of such areas;
(5) Arms, fire-arms, ammunition and explosives;
(6) Atomic energy, and mineral resources essential to its production.
We recommend further that in order to enable the Union Government
effectively to discharge its responsibility for defence, it should be vested with
the powers similar to those contained in sections 102 and 126-A of the
Government of India Act, 1935.
B— “Foreign affairs” connotes all matters which bring the Union into
relation with any foreign country and in particular includes the following
subjects:
(1) Diplomatic, consular and trade representation ;
(2) United Nations Organisation ;
(3) Participation in international conferences, associations and other
bodies and implementing of decisions made thereat;
(4) War and peace;
(5) The entering into and implementing of treaties and agreements with
other countries;
(6) Trade and commerce with foreign countries;
(7) Foreign loans;
(8) Naturalization and aliens;
(9) Extradition;
(10) Passports and visas;
(11) Foreign jurisdiction;
(12) Admiralty jurisdiction;
(13) Piracies, felonies committed on the high seas and offences com¬
mitted in the air against the law of nations;
(14) Admission into, and emigration and expulsion from, the Union;
(15) Port quarantine;
(16) Import and export across customs frontiers as defined by the
Union Government;
(17) Fishing and fisheries beyond territorial waters.
C—The term “communications”, although it is wide enough to cover any
connection between places, should for the present purposes of the Union,
in our opinion, include the following;
(1) Airways;
(2) Highways and waterways declared by the Union to be Union high¬
ways and waterways;
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FIRST RBPORT OF THE UNION POWERS COMMITTEE
745
(3) Shipping and navigation on inland waterways, declared by the Union
to be Union waterways, as regards mechanically propelled vessels,
and the rule of the road on such waterways; carriage of passengers
and goods cm such waterways;
(4) (a) Posts and Telegraphs:
Provided that the rights existing in favour of any individual State unit
at the date of the establishment of the Union shall be preserved to
the unit till the same are modified or extinguished by agreement
between the Union and unit concerned, subject however to the power
of the Union to make laws for the regulation and control of the same.
(b) Union telephones, wireless, broadcasting and other like forms of
communication; the regulation and control of all other telephones,
wireless, broadcasting and other like forms of communication;
(5) Union railways, the regulation of all railways (other than minor
railways) in respect of safety, maximum and minimum rates and
fares, station and service terminal charges, interchange of traffic and
the responsibility of railway administrations as carriers of goods and
passengers; the regulation of minor railways in respect of safety
and the responsibility of the administrations of such railways as
carriers of goods and passengers;
(6) Maritime shipping and navigation, including shipping and naviga¬
tion on tidal waters ; admiralty jurisdiction;
(7) Major ports, that is to say, the declaration and delimitation of such
ports and the constitution and powers of port authorities therein;
(8) Aircraft and air navigation; the provision of aerodromes, regula¬
tion and organization of air traffic and of aerodromes;
(9) Lighthouses, including lightships, beacons and other provision for
the safety of shipping and aircraft;
(10) Carriage of passengers and goods by sea or by air;
(11) Union meteorological services ;
(12) Inter-unit quarantine.
D —The expression “the powers necessary to raise the finances required”
for the Union subjects in the Cabinet Delegation’s Statement necessarily in¬
cludes the power to raise finances by taxation and loans. In existing circum¬
stances, we recommend the following sources of revenue for the Union:
(1) Duties of customs, including export duties;
(2) Excise duties;
(3) Corporation tax;
(4) Taxes on income other than agricultural income;
(5) Taxes on the capital value of the assets, exclusive of agricultural land,
of individuals and companies; taxes cm the capital of companies;
(6) Duties in respect of succession to property other than agricultural
land;
(7) Estate duty in respect of property other than agricultural land;
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746
FRAMING OF INDIA’S CONSTITUTION
(8) Fees in respect of any of the matters in the list of Union powers,
but not including fees taken in any court, other than the Union
Court.
We realize that, in the matter of industrial development, the States are
in varying degrees of advancement and conditions in British India and the
States are in many respects dissimilar. Some of the above taxes are now
regulated by agreements between the Government of India and the States.
We, therefore, think that it may not be possible to impose a uniform stan¬
dard of taxation throughout the Union all at once. We recommend that
uniformity of taxation throughout the units may, for an agreed period of
years after the establishment of the Union not exceeding fifteen be kept in
abeyance and the incidences, levy, realization and apportionment of the
above taxes in the State units shall be subject to agreements between them
and the Union Government. Provision should accordingly be made in the
Constitution for implementing the above recommendation.
This is in addition to the recommendations of the Sub-Committee on
Fundamental Rights regarding internal customs duties.
3. It is impossible to enumerate the powers implied or inherent in or
resultant from the express powers of the Union. We think that in any case
the following powers come within the category:
(1) Union judiciary;
(2) Acquisition of property for the purposes of the Union;
(3) Union agencies and institutes for the following purposes, that is to
say, for research, for professional or technical training, or for the
promotion of special studies;
(4) Census;
(5) Offences against laws with respect to any of the matters in the list
of Union powers;
(6) Enquiries, surveys and statistics for the purposes of the Union;
(7) Union services;
(8) Industrial disputes concerning Union employees;
(9) Reserve Bank of India;
(10) Property of the Union and the revenue therefrom;
(11) Public debt of the Union;
(12) Currency, coinage and legal tender;
(13) All subjects in respect of Union areas;
(14) Powers to deal with grave economic emergencies in any part of the
Union affecting the Union.
4. We are of the opinion that provision should be made in the new
Constitution for the recognition throughout the Union of the laws and
public Acts and records of the judicial proceedings of the units and for
judgments and orders delivered in one unit being enforced in other units.
We note that a provision to this effect has already been made in the list of
fundamental rights.
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first rbport of the union powers committee
747
5. In addition to the above subjects which, in our view, come within the
scope of Union powers in accordance with the Cabinet Delegation's State¬
ment, we hope that the following subjects will also be included in the
Union List by agreement:
(1) Insurance;
(2) Company laws;
(3) Banking;
(4) Negotiable instruments;
(5) Patents, trade marks, trade designs, copyright;
(6) Planning;
(7) Ancient and historical monuments;
(8) Standard weights and measures.
Such an arrangement will ensure uniformity throughout the territories of
the Union in matters bearing on trade and commerce as has in fact been
recognized in many federal constitutions. We have included planning in
the above list for the reason that although authority may rest in respect erf
different subjects with the units it is obviously in their interest to have a
co-ordinating machinery to assist them.
6. We recommend the insertion in the Constitution of a provision on the
lines of Article (xxxvii) of section 51 of the Australian Constitution Act.
7. We also recommend that by agreement there may be a list of concur¬
rent subjects as between the Union and the units.
Jawaharlal Nehru.
Govind Ballabh Pant,
B. L. Mitter.
Jairamdas Daulatram,
N. Gopalaswami Ayyangar,
K. M. Munshi.
V. T. Krishnamachari.
B. Pattabhi Sitaramayya.
Biswanath Das.
A. Krjshnaswami Ayyar.
(n) GOPALASWAMI AYYANGAR’S NOTE
April 18. 1947
Though for the sake of getting on with the work I signed the Report of
the Union Powers Committee yesterday, I am not altogether satisfied with
it. It suffers in places from some loose thinking and certain lack of preci¬
sion and accuracy. It is true that in a report of this kind, there is no need
to insist on absolutely correct drafting, but in view of the personnel of the
committee it was essential to avoid giving room for criticism of what would
be spotted as obvious errors.
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748
FRAMING OF INDIA’S CONSTITUTION
2. The significance was not sufficiently realised of the distinction
which, in the Cabinet Mission’s Plan, has been made between the three
Union subjects of foreign affairs, defence and communications and the
power to raise the finances required for these subjects. The assignment of
a subject to a grade of Government without any limitations carries with it
the title to exercise all powers—legislative, executive or judicial—required
for the administration of those subjects and as administration involves ex¬
penditure which has to be met by adequate funds, the powers necessary
to raise the finances required for such administration did not need, strictly
speaking, to be mentioned. The specific mention of such powers in para¬
graph 15(1) of the Cabinet Mission’s Plan must have been intended simply
to place the matter beyond all doubt, in view of the different points of view
taken by the Congress and the Muslim League as regards the manner in
which the Union would raise the finances required. The actual language
in that sub-paragraph must, therefore, be deemed to indicate that the Union
Government would have the widest freedom in raising whatever finances it
might need.
3. The committee accepted this view in the wording of the preamble of
paragraph 2(D) of the report. This preamble is intended to indicate—
(1) that the power to raise finance is wider than the power to impose
only specified taxes, and
(2) that though the list in para 2(D) mentioned a number of taxes it
would still be open to die Union when the need arises for doing
so to impose other taxes. In other words, both the Union and
the units will have concurrent jurisdiction over a large field of
taxation.
4. It should be obvious to anybody who has given thought to the subject
that the finances which the Union could raise would comprise not only
the proceeds of taxation but also the funds raised by public borrowing, the
sale proceeds of or income from Union property both movable and
immovable, contributions from units (e.g., the contributions which certain
Indian States pay to the credit of the Government of India at present if
they are continued in the future also) and possibly other miscellaneous
receipts of a varied nature. When this was pointed out to the members
of the committee they agreed to add public loans only in the preamble
of paragraph 2(D). Contributions from Indian States are nowhere men¬
tioned in the lists given in the report. And curiously enough ’public debt
of the Union’ and ’property of the Union and the revenue therefrom’ are
two items included in paragraph 3 which refers to powers implied or
inherent in or resultant from the express powers of the Union. These two
items do not require to be treated as implied or resultant They are as
much express powers as taxation included in the general heading ‘Powers
to raise finances’. In fact, when we are listing the matters—under each
of the four broad categories—which are all to be specified in the Constitution,
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FIRST REPORT OF THE UNION POWERS COMMITTEE
749
it would be anomalous to label some of them as implied in, incidental to
or resulting from, others.
5. The scheme of the Cabinet Mission is that subjects other than those
specifically assigned to the Union shall fall within the jurisdiction of the
Provinces or States; and properly interpreted that scheme would also imply
that the power to raise the finances required for unit subjects would vest
in the units; only that power should be exercised outside the field annexed
exclusively to itself by the Union. There are certain aspects of communi¬
cation which necessarily have to be with the units. Certain sources of
taxation which the Union may tap may require to be tapped also for
meeting unit expenditure. Foreign affairs may be an exclusive Union
subject perhaps. But some of the items included under defence and
communications will fall both under the Union and the units. Similarly,
some taxes, like customs, may have to be exclusively Union taxes while
others like income-tax may fall within the jurisdiction of both the Union
and the units. The report has omitted to tackle the difficult problem of
what matters listed in it should be treated as exclusively Union and what
should be treated as common or concurrent.
6. All the items of taxes listed in paragraph 2(D) of the report have
been described as sources of revenue for the Union. This would be incor¬
rect under the scheme of the Government of India Act, 1935. There was
no deliberately taken decision that this deviation from the existing state of
things is required under the new order of things; on the other hand it was
throughout assumed that for smooth going it was desirable that as far as
possible there should be no deviations from the existing conditions. Under
the scheme of the Government of India Act succession duties and estate
duties in respect of property other than agricultural land are taxes for
which the Federal Legislature will only enact the necessary legislation, but
the entire net proceeds of such taxes will be distributed amongst the units.
Taxes on income other than agricultural income have also to be legislated
for by the Federal Legislature though the proceeds from such taxes have
to be shared between the Centre and the units. Certain excise duties like
those on alcoholic liquor for human consumption, opium, etc., are under
the existing Act excluded from the jurisdiction of the Federation. In
respect of corporation tax an exemption is conferred on Indian States for
a period of ten years and thereafter the Indian States are given the option
of avoiding the levy of it by paying to the Federation from other sources
the estimated net corporation tax in their jurisdiction. It is to be hoped
that before the regular drafting of the Constitution is taken up these and
other matters of substance will be carefully investigated and decisions taken.
7. I am not sure that the additional sub-paragraph which was added to
paragraph 2(D) of the report at the instance of the representatives of the
Indian States could be finally accepted either as regards its substance or
as regards its wording. I am glad, however, that the special concession made
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750
FRAMING OF INDIA’S CONSTITUTION
to Indian States was limited at the instance of Sir Aliadi Krishnaswami
Ayyar to a maximum period of fifteen years. This matter also would require
careful re-investigation before the drafting of die necessary provisions in the
new Constitution is taken up.
8. The omnibus paragraph suggesting the inclusion by agreement of an
unspecified concurrent list could hardly be justified as it stands. The items
should have been gone through in detail and only such of them as were
absolutely necessary should have been recommended to be placed in a list
of concurrent subjects if ever agreement was going to be reached at all on
having such a list
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31
NOTES SUBMITTED TO THE UNION POWERS
COMMITTEE (II)
June 1947
[The memorandum on the Union Constitution issued by the Constitu¬
tional Adviser on May 30, 1947 [sec Document No. 15(ii)] stated that
the provisions to be inserted under the head 'Distribution of Legislative
Powers between the Union and the unitf would depend on the decisions
that might be taken by the Assembly on the Report of the Union Powers
Committee. The Union Constitution Committee meeting on June 6
(see Document No. 16) tentatively decided that the Constitution should
be a federal structure with a strong Centre. This was endorsed at a
joint meeting of the Union Constitution and Provincial Constitution
Committees (see Document No. 19) held on the next day. A joint sub¬
committee set up by the two committees, however, pointed out (see
Document No. 20) that if the Assembly decided to extend the scope of
the Union’s powers it would have to remember that so far as the
Princely States were concerned, their entry into the Assembly would
continue to be on the basis of the Cabinet Mission’s Statement and that
the ceding of wider powers by them would necessarily have to be with
their consent. The Union Powers Committee was expected to review
the recommendations it had embodied in the first report in the light
of the announcement of the June 3 Plan. During June the committee
received several letters and notes from the members of the committee,
including those representing the Princely States, and as also from the
departments of the Government of India, suggesting assignment of
certain items to one or the other of the three lists of subjects. The texts
of these letters and notes are reproduced below.]
(i) LETTER FROM THE DEPARTMENT OF AGRICULTURE,
GOVERNMENT OF INDIA
June 4, 1947
I am dirbcted to forward a copy of the Report* of the Prices Subcommittee
of the Policy Committee on Agriculture, Forestry and Fisheries, which
•Not reproduced.
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752
FRAMING OF INDIA’S CONSTITUTION
was appointed in December, 1944 to consider the principles on which
producers’ prices of agricultural produce—whether crops grown for indus¬
trial purposes or food or the produce of animal husbandry of all descrip¬
tions—should be fixed and the means by which such prices can be made
effective and an assured market be provided. I am to invite particular
attention to chapter IX (pages 132-160) of the report in which the sub¬
committee has considered the question of a suitable administrative machi¬
nery for giving effect to its proposals and has recommended the setting up
by voluntary agreement and cooperation between the Central, Provincial
and State Governments of an All India Agricultural Prices Council consist¬
ing of representatives at ministerial level for the purpose of evolving an
integrated price policy for agricultural and animal husbandry products. The
All India Agricultural Prices Council is proposed to have under it two
bodies, viz., (1) a semi-judicial body called the Price Determination Com¬
mission for determining the levels at which the minimum and maximum
prices of the commodities referred to it should be fixed and (2) a commer¬
cial body called the Commodity Corporation for enforcing the minimum
and maximum prices fixed by appropriate market operations and the
holding of reserve stocks. A summary of the Report of the Prices Sub-
Committee was considered by a conference of representatives of Central,
Provincial and State Governments held in January 1947 and the conference
in general agreed to the proposals of the sub-committee. The full report of
the sub-committee has now been circulated to the Provincial and State
Governments for their comments and after their replies are received it is
proposed to discuss it at another conference of the representatives of the
Central, Provincial and State Governments to be held in the near future.
2. The setting up of an All India Agricultural Prices Council and its
two subordinate organs for formulation and enforcement of price policy
was generally agreed to in principle by the conference of representatives
of Central, Provincial and State Governments held in January 1947. As
some such machinery for coordinating Provincial and State policies in the
sphere of agricultural prices will probably have to be set up irrespective
of the form and character of the future constitutional relations between the
Centre. Provinces and States, I am to request that the recommendations
of the Prices Sub-Committee in this respect may kindly be brought to the
notice of the Constituent Assembly so that it may consider the desirability
of making appropriate provision in the Constitution for the purpose.
(n) LETTER FROM THE DEPARTMENT OF EDUCATION (UNIVERSITY
GRANTS COMMITTEE) TO B. N. RAU
June 26. 1947
With reference to our personal discussion in regard to the university
questions which the University Grants Committee would have to deal with
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (u) 753
and which would be raised by the impending constitutional changes, I am
writing to say that the three Central universities, viz., the Delhi, the Aligarh
Muslim and the Benaras Hindu universities may continue to remain Central
or Union subjects under the direct control of the Union.
A further subject which may be brought under the powers of the Union,
and which the Union Powers Committee may perhaps consider at their
meeting of the 30th instant, is “the coordinated development of university
education”. This latter subject could perhaps be placed on the joint list,
since it is, within limits, a Provincial subject also.
There has not been time to convene a special meeting of the University
Grants Committee for the purpose of putting up a formal memorandum
nor have we had so far an opportunity for participating in the actual
discussions that are perhaps taking place on these and other kindred educa¬
tional problems in the committees of the Constituent Assembly.
The University Grants Committee would be glad indeed to be of any
use in the shaping of policies or other decisions in regard to university
education in the Indian Union and other areas.
(m) A NOTE BY PATTABHI SITARAMAYYA PRESENTING A CASE FOR
CONCURRENT JURISDICTION OVER BROADCASTING
June 28, 1947
It is presumed that the recommendations of the Union Powers Committee
and the Provincial Constitution Committee of the Constituent Assembly
now meeting in New Delhi will be accepted with the necessary modifica¬
tions for adoption in the Constitution of Hindusthan irrespective of the
attitude adopted by the Pakistan area.
This note is an attempt to make out a case for concurrent jurisdiction for
the Centre and the Provinces in regard to broadcasting.
The Union Powers Committee of the Constituent Assembly in its report
presented on April 28, 1947 to the Constituent Assembly refers to the subject
of broadcasting in the section of the report which deals with “communica¬
tions”. Clause 4(c) of the section states that Union telephones, wireless
broadcasting and other like forms of communication, the regulation and
control of all other telephones, wireless broadcasting and other like forms
of communication, should be included within the jurisdiction of the Union.
This clause has to be very carefully examined before it is endorsed by
the Constituent Assembly. The Provincial Constitution Committee has
also to examine this question carefully so that the Provinces may not be
deprived of broadcasting facilities for their Government as well as people
in their own languages.
Wireless broadcasting as it exists in India today falls into three categories,
namely, military, police and civil. Of these, the first should certainly be
under the control of the Defence Department of the Union Government.
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FRAMING OF INDIA’S CONSTITUTION
But police and civil broadcasting are of great necessity and usefulness to
the Provincial Government as well.
The maintenance of law and order is a Provincial responsibility. A
number of Provinces and some States do already maintain a police wireless
system. The immediate future period in India is not going to be a very
comfortable one. There are many dements trying to grasp power and
most of than do not admittedly believe in non-violence or the open consti¬
tutional methods. The maintenance of law and order in the period of
transition that is ahead is not going to be an easy job. The Provincial
Governments have to improve their police wireless communication wher¬
ever there is such a system; wherever there is none, the system has to be
introduced immediately.
In regard to dvil broadcasting, the position under the old 1935 Act is
most unhappy. The Central Government has absolute power over broad¬
casting under section 129. The result is that a number of Provinces which
were willing could not develop broadcasting in their own languages. The
Central Government is unable to develop it due to financial difficulties.
For example, Madras by this time would have had a full developed
regional broadcasting service in all the four languages of the Province.
Now only one language has a proper service, one has an inadequate service
and two no services at all. The Prime Minister of a Provincial Govern¬
ment at whose capital there is a radio station has to seek the favour of
the local Station Director for providing broadcasting facilities for an
important occasion. The Provincial Government has no hand in shaping the
programme or any power to censor the material broadcast by these stations.
Rural broadcasting, which has to become more prominent hereafter,
suffers most if it is in the hands of Central Government officials.
Broadcasting has to play a very great part in future India, particularly
as a medium of educating and informing the masses. Its value is greater
to the rural than the urban areas. While to the urban people, it may be
an instrument of entertainment, to the rural population it will be a power¬
ful medium of education through entertainment As such, broadcasting in
India has to be definitely classified into some sections as has already been
done by the Government of India in their post-war plan for the develop¬
ment of broadcasting. This classified service has to be partly revenue¬
getting and partly social. While the urban services can be treated as
revenue-bringing channels, the rural services, which need not necessarily
be free, should be based on community listening in the early period, and
should be treated as a social service.
Therefore, the Union Government may be allowed to retain the external,
national and urban services in their hands leaving the rural uplift and
educational fields to the Governments of the Provinces and the States.
It is the Governments of the units of the future Union that will be faced
with the actual problem of uplifting the masses, but not the Union
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Government, which will have very limited powers in that direction. Edu¬
cation will be a “Provincial subject”. Therefore, educational broadcasts
should be a Provincial subject and rural uplift, on which popular Govern¬
ments have to lay stress, if they are to be popular and national, will be a
Provincial subject. Therefore rural broadcasting should be a “Provincial
subject”.
Education and rural education particularly will have to be in the
language of the people in future India. Regional broadcasting has there¬
fore to be developed by the Provincial Governments or under their
immedia te supervision. If it is left to the Centre, the development of
broadcasting in India will suffer to that extent as it has already
suffered.
The constitutional position of broadcasting under the 1935 Act of the
Government of India, has been unhappy enough. The wrong done by
section 129 of the Act must be rectified at least now.
As regards posts and telegraphs, the Union Powers Committee’s Report
says that:
Provided that the rights existing in favour of any individual State unit at
the date of the establishment of the Union shall be preserved to the unit
until the same are modified or extinguished by agreement between the
Union and the units concerned, subject, however, to the power of the
Union to make laws for the control and regulation of the same.
A similar clause may eventually have to be included when more States
having already an independence system of broadcasting join the Constituent
Assembly. So far only one State with a separate broadcasting system
(namely Baroda) and only one State with a proposed scheme of broadcast¬
ing (namely Gwalior) have joined the Constituent Assembly. They may not
surrender their broadcasting rights. Under these circumstances, such of the
Provinces as will join the Union will be at a disadvantage.
In cases where a present Province has to be divided, that part of the
divided Province, which does not have an existing radio station will be
at a great disadvantage and has to depend upon the sweet will of the new
Union Government for the provision of broadcasting facilities in the
languages of the Province. The case of Provinces which do not have radio
stations will also be the same.
The importance of broadcasting and the immense potentialities it has for
creating an initiative in the people for nation-building work and for educat¬
ing them has to be realized by the Provinces at once. If such a powerful
weapon of reform is entirely surrendered to the future Union Government
the Provinces will be deprived of the moist modem means iff contacting and
educating their people. It is almost the “liberty of speech” of the Provincial
Governments.
A case has to be made out immediately for a concurrent jurisdiction in
regard to broadcasting.
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FRAMING OF INDIA’S CONSTITUTION
The Union Government can control and regulate external, national and
urban broadcasting. The rural and the educational aspects of broadcasting
must be left to the Governments of the units.
If it is the intention of the Union Powers Committee that the words “other
wireless broadcasting” refer to the Provincial sphere in broadcasting, the
position has to be made clear. In whatever way it is made, either by the
provision of separate transmitters, the provision of studio time or any other
means, there must be a Provincial sphere in broadcasting. This must be
definitely provided for in the Constitution.
(IV) A NOTE BY V. T. KRISHNAMACHARI ON UNION FINANCE IN
RELATION TO THE PRINCELY STATES
June 29, 1947
The object of this note is to indicate in a general way the principles
which should regulate the financial relations between the Centre and the
States. The views expressed are my personal views.
2. It is open to States either to establish a political relationship or to
become units in the Federation.
3. To take first the States that elect to establish a political relationship.
These are clearly under an obligation to bear their proportionate share
of the cost of the defence of India and of the general Central adminis¬
tration. It is understood that the standard expenditure on defence has
been recently fixed in the neighbourhood of Rs. 110 crores. Four-fifths
of this may be taken as the standard after excluding the areas that are
seceding, that is, about Rs. 88 crores or Rs. 90 crores in round figures.
Then there is the proportionate cost of the Central general administra¬
tion. Such States will have arrangements with the Union covering all
matters of common concern, such as railways, posts and telegraphs, etc.,
and they should, therefore, contribute not merely a portion of the cost of
the Political or States Department but also of the whole of the Central
administration. It is not possible to estimate from the Government of
India’s budget for 1947-48 what this would be. It has first to be decided
on what basis the proportionate share of such expenditure for the State
concerned should be calculated. The per capita population basis would
not be altogether fair. The degree of development of the State industrial¬
ly and the ratio of urban to rural population are important relevant factors.
Having arrived at an approximate figure, the next step will be to deduct
from it the contributions already paid by the people of the State. The
largest of these, in the case of inland States, is the share of the customs
revenue of India paid by the people of the State. Next comes the share
of the central excises borne by the people, as excises are essentially taxes
on consumption. Deductions are claimed on other grounds also, e.g.,
ceded territories. The conditions under which this claim should be
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (il) 757
admitted and the form in which credit should be given are matters for
negotiation and settlement. Then again, there is the expenditure incurred by
a State cm earmarked field service troops which fit into the general plans for
the defence erf India. The net amount left after deductions are made
will have to be made good by the State in an agreed manner. A balance sheet
like this is easy enough to work out, once general principles are laid down.
4. I now come to States which decide to become units of the Federa¬
tion. Such States should not be called upon to bear a larger financial
burden than the States which establish a political relationship. The
Union has a close interest in the solvency and financial well-being of these
States and the standard of social services in them and any scheme erf
financial adjustment arrived at should be such as would not cause serious
dislocation in the States. I doubt whether any rigid time limit should
be prescribed in the Constitution Act itself within which such States
should make their full contribution to defence. In the more backward
areas the reform of the fiscal system needed will take quite a long time.
These remarks apply specially to the replacement of the land customs by
other sources of revenue: the introduction of alternative forms erf taxation
will take more than fifteen years in many States.
5. There is also another point. In enumerating “sources of revenue for
the Union”, we should differentiate between taxes raised for meeting the
obligations of the Centre and taxes raised by the Centre for distribution
to the Provinces. Items (6) and (7)—succession duties and estate duties—
come under the latter category. These should be made available for the
Provinces so that they may be able to find funds for their development
programmes. They are best levied Centrally as Central levy alone can be
efficient and economical. In times of emergency, a central ‘surcharge’
may be levied; but ordinarily they are Provincial sources. The Act of
1935 brings out their nature.
6. I also think that a provision analogous to section 125 of the Govern¬
ment of India Act, 1935, should be inserted in the Constitution Act. At
present the major States have organized services administering ‘Union’
subjects and it is obviously advantageous that this should be continued
subject to the condition indicated in that section.
(V) A NOTE BY K. M. MUNSHI ON SUBJECTS TO BE ADDED TO THE
UNION POWERS
June 30, 1947
DEFENCE
1. Materials from which high explosives are prepared.
2. Petroleum and other liquids and substances declared by Union law
to be dangerously infl amma ble.
49
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758
FRAMING OF INDIA’S CONSTITUTION
3. Regulation of mines and oilfields and mineral development to the
extent to which such regulation and development under Union control
is necessary for defence.
FOREIGN AFFAIRS
1. Foreign corporations.
2. Corporations formed within the Union with one-third foreign capital
or management on which there are fifty per cent foreigners.
COMMUNICATIONS
1. Post Office Savings Bank. (Finance)
2. Territorial waters.
FINANCES
1. Cheques, bills of exchange, promissory notes and other like instruments.
2. Corporations incorporated under a Union Act.
3. Insurance.
4. Company law.
5. Banking.
6. Negotiable instruments.
7. Currency, coinage and the issue of paper money.
8. Legal tender.
9. Bounties, subsidies, subventions and grants.
10. Assumption of Provincial debts by the Union.
INCIDENTAL SUBJECTS
1. Colleges, schools, libraries, museums, memorials, universities
conducted by or maintained out of the funds of the Union or in
Union areas.
2. Election of the President and the Vice-President.
3. Elections to the Union Parliament subject to the provisions of this
Act and of any Order in Council made thereunder.
4. The salaries of the President and the Vice-President of the Union,
the Ministers of the Union, of the President and the Vice-President of the
Senate and of the Speaker and the Deputy Speaker of the National Assembly;
the salaries, allowances and privileges of the members of the Union
Parliament, and the punishment of persons who refuse to give evidence or
produce documents before committees of the Legislature.
5. The Supreme Court of India and Federal Courts and registration of
legal practitioners entitled to practise therein.
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NOTES SUBMITTED TO THE UNION POWERS COMMITTEE (il) 759
6. Extension of powers and jurisdiction of members of a police force
belonging to a State for purposes of the Union.
7. Welfare of labour; conditions of labour, provident funds, employer’s
liability and workmen’s compensation; health insurance including invalidity
pensions, old age pensions, orphans.
8. Unemployment insurance and social assistance.
9. Trade unions: industrial and labour disputes, conciliation and arbitra¬
tion for the settlement of such disputes.
10. Regulation and control of narcotics, poisons, dangerous articles or
obscene or blasphemous literature; registration of medical practitioners
entitled to practise in India and prescription of minimum qualifications
thereof; national health in co-operation with the States.
11. Prevention of entry into any State of persons who have been con¬
victed or may have been charged with and not acquitted of crime into
another State, whether a member of the Union or not.
12. Manufacture and control of alcoholic liquors.
13. Planning.
(Vl) A NOTE BY D. P. KHATTAN ON SUBJECTS TO BE ADDED TO THE
UNION POWERS
June 1947
1. Inter-Provincial irrigation system, hydro-electric projects.
2. Fisheries, inland and deep-sea fisheries.
3. Marriage and divorce, infants and minors, adoption.
4. Wills, intestacy and succession.
5. Transfer of property, registration of deeds and documents.
6. Trusts and trustees.
7. Contracts, including partnership, agency, contracts of carriage and
other special forms of contracts, but not including contracts relating to
agricultural land.
8. Bankruptcy and insolvency; Administrators-General and Official
Trustees, and similar authorities.
9. Jurisdiction and powers of all courts.
10. Legal, medical and other professions.
11. Criminal law and criminal procedure.
12. Civil procedure including the law of limitation, and all matters
included in the Code of Civil Procedure.
13. Newspapers, books and printing presses.
14. Mechanically propelled vehicles and boilers.
15. The prevention erf extension from one unit to another of infectious
or contagious diseases or pests affecting men, animals or plants.
16. The sanctioning of cinematograph films for exhibition.
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FRAMING OF INDIA’S CONSTITUTION
17. Fees in respect of any of the matters in the list, but not including
the fees taken in any court.
Note: (a) These are subjects common to more than one Province.
(b) Central subjects may be delegated to one or more Provinces with
power to revoke such delegation.
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32
MINUTES OF THE JOINT MEETINGS OF THE UNION
POWERS AND UNION CONSTITUTION COMMITTEES
June-July 1947
[The Union Powers Committee and the Union Constitution Committee
held four joint meetings from June 30 to July 3, 1947. At these meet -
ings the memorandum on the Union Constitution [sec Document No.
15(ii)] and the entries for the three lists — Union , Provincial and Concur¬
rent—were discussed and settled. While the Union List underwent some
modifications , the committees had little difficulty in finalizing the other
two lists. The minutes of the joint meetings are reproduced below .}
June 30, 1947
Present: (1) Pandit Jawaharlal Nehru (in the Chair)-, (2) Dr. Rajendra
Prasad; (3) Pandit Govind Ballabh Pant; (4) Dr. B. R. Ambedkar; (5)
Sir Alladi Krishnaswami Ayyar; (6) Mr. K. M. Munshi; (7) Prof. K. T. Shah;
(8) Sir V. T. Krishnamachari; (9) Sardar K. M. Panikkar; (10) Sir N.
Gopalaswami Ayyangar; (11) Mr. P. Govinda Menon; (12) Mr. B. H.
Zaidi; (13) Mr. Biswanath Das; (14) Mr. D. P. Khaitan; (15) Mr. M. R.
Masani; (16) Lt. Col. Maharaj Shri Himatsinhji.
In attendance: Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V. R.
Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B. F. H. B.
Tyabji, Deputy Secretary; (5) Mr. Jugal Kishore Khanna, Deputy Secretary.
*Clause 17: It was suggested by Sir N. Gopalaswami Ayyangar that a
provision should be made in this clause that the text of all statutes should
be in English; but no decision was taken on this point. The clause was
agreed to without any change.
Clause 18: Pandit Govind Ballabh Pant suggested that power should
be provided in this clause to promulgate ordinances during the sessions
of the Federal Parliament, but this was negatived by a majority of votes and
the clause was accepted without any change.
Clauses 19, 20, 21, 22 and 23: Accepted.
♦The reference is to the clauses of the memorandum on the Union Constitution.
[See Document No. 15(ii).]
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FRAMING OF INDIA’S CONSTITUTION
Clause 24: It was decided that instead of the detailed provisions in
this clause, there should be a general provision enabling the Federal
Parliament to make provisions with respect to election matters.
The committees also decided that the provisions contained in the proviso
to this clause should be retained and incorporated in a new clause.
Part V: The consideration of this Part was postponed until the Union
Powers Committee had considered and taken decisions with regard to the
distribution of powers between the Federation and the units.
Part VI: Mr. Munshi suggested that a provision should be included
either in this Part or elsewhere, to the effect that in the event of any
unit failing to carry out the directions with regard to Federal subjects,
the President might take necessary steps to have them carried out. It
was considered by the committees that the appropriate place for such a
provision would be clause 8 of Part IV of the memorandum.
Accepted without any change.
Part VII: It was decided that the words “on such principles, or for such
purposes or periods and on such terms and conditions as may be pres¬
cribed by federal law” should be omitted from clause 3 of this Part.
The remaining clauses of this Part were agreed to without any change.
It was, however, decided that a provision on the lines of section 150(2)
of the Government of India Act, 1935, should be included in this Part.
Part VIII: Accepted.
Part IX: It was agreed that the provisions for the protection of the
minorities as approved by the Constituent Assembly on the Report of the
Advisory Committee should be incorporated in this Part.
Part X: It was decided that in this clause for the words “the total
number of members” the words “the members present and voting” should
be substituted.
It was also suggested that for the words “two-thirds of the units” the
words “one-half of the units” should be substituted.
It was, however, decided that a Sub-Committee consisting of Sir N.
Gopalaswami Ayyangar, Mr. B. H. Zaidi, Dr. B. R. Ambedkar, Mr. K.
M. Munshi and Sardar K. M. Panikkar should further examine the ques¬
tion of ratification of amendments to the Constitution by the Legislatures
of the units and submit a report.
Part XI: Clause I: This clause was agreed to subject to any amend¬
ment which might be necessary after the new Dominion Act amending
the Government of India Act, 1935, was issued.
Clause 2: It was decided that in sub-clause (1) of this clause, for the
words “Provinces included in Schedule I” the words “territories of the
Federation” should be substituted and that in sub-clause (2) of this clause
the word “aforesaid” should be omitted.
Clause 3: Accepted.
Clause 4: Accepted.
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UNION POWERS AND CONSTITUTION COMMITTEES
763
Clause 5: This clause was agreed to subject to any modification that
mi gh t be necessary as a result of the passing of the new Dominion Act
amending the Government of India Act, 1935.
Clause 6: Accepted.
It was decided that the Union Constitution Committee should meet
again on the 12th July. 1947. to consider further the memorandum after
it has been revised in the light erf today’s decisions. In the meanwhile
the memorandum as so revised should be circulated to the members of
the Constituent Assembly.
July 1, 1947
[Note: No regular minutes of the July 1 meeting appear to have been kept; the
list below was circulated.]
FEDERAL LEGISLATIVE LIST
Subjects proposed for inclusion at
the joint meeting of the Union
Constitution and Union Powers
Committees held on July 1, 1947.
1
1. The defence of the Federation
and of every part thereof
and generally all preparation
for defence, as well as all such
acts in times of war as may be
conducive to its successful
prosecution and to effective
demobilisation after its termi¬
nation;
2. Requisitioning of lands for de¬
fence purposes including train¬
ing and manoeuvres;
3. Central Intelligence Bureau;
4. Preventive detention in the
Federation for reasons of State;
5. The raising, training, mainte¬
nance and control of naval,
military and air forces and
employment thereof for the
defence of the Federation and
execution of the laws of the
Federation and its units; the
Subjects recommended for inclu¬
sion by the Union Powers Com¬
mittee in their Report dated April
17,1947.
2
A. The defence of the Union and
of every part thereof and gene¬
rally all preparation for defence
as well as all such acts in times
of war as may be conducive
to its successful prosecution
and to effective demQbilisation
after its termination;
A(l). The raising, training, main¬
tenance and control of naval,
military and air forces and
employment thereof for the
defence of the Union and the
execution of the laws of the
Union and its units; the
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764
FRAMING OF INDIA’S CONSTITUTION
1
strength, organization and
control of the existing armed
forces raised and employed in
Indian States;
6. Defence industries;
7. Naval, military and air force
woks;
8. Local self-government in can¬
tonment areas, the constitution
and powers within such areas
of cantonment authorities, the
regulation of house accommo¬
dation in such areas and the
delimitation of such areas;
9. Arms, fire-arms, ammunition
and explosives;
10. Atomic energy, and mineral
resources essential to its pro¬
duction;
11. Foreign affairs; all matters
which bring the Federation into
relation with any foreign
coun ry;
12. Diplomatic, consular and trade
representation;
13. United Nations Organisation;
14. Participation in international
conferences, associations and
other bodies anl implementing
of decisions made thereat;
15. War and peace;
16. The entering into and imple¬
menting of treaties and agree¬
ments with other countries;
17. Trade and commerce with
foreign countries;
18. Foreign loans;
19. Ci f izen hip, naturalization and
aliens;
20. Extradition;
21. Passports and visas;
22. Foreign jurisdiction;
2
strength, organization and
control of the existing armed
forces raised and employed in
Indian States;
A(2). Defence industries;
A(3). Naval, military and air force
works;
A(4). Local self-government in can¬
tonment areas, the constitution
and powers within such areas
of cantonment authorities, the
regulation of house accommo¬
dation in such areas and the
delimitation of such areas;
A(5). Arms, fire-arms, ammunition
and explosives;
A(6). Atomic energy, and mineral
resources essential to its pro¬
duction;
B. Foreign affairs; all matters
which bring the Union into re¬
lation with any foreign country;
B(l). Diplomatic, consular and
trade representation;
B(2) United Na' ions Organisation;
B(3) Participation in international
confe r ences, associations and
other bodies and implementing
of decisions made thereat;
B(4). War and peace;
B(5). The entering into and imple¬
menting of treaties and agree¬
ments with other countries;
B(6). Trade and commerce with
foreign countries;
B(7). Foreign loans;
B(8). Naturalization and aliens;
B(9). Extradition;
B(i0) Passports and visas;
B(ll). Foreign jurisdiction;*
*B(12). Admiralty jurisdiction is included in C(6).
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UNION POWERS AND CONSTITUTION COMMITTEES
765
1
23. Piracies, felonies committed
on the high seas and offences
committed in the air against
the law of nations;
24. Admission into, and emigration
and expulsion from, the Fede¬
ration, pilgrimages to places
beyond India;
25. Port quarantine; seamen’s and
marine hospitals, and hospitals
connected with port quarantine;
26. Import and export across cus¬
toms frontiers as defined by
the Federal Government;
27. The Imperial Library, the
Indian Museum, the Imperial
War Museum, the Victoria
Memorial and any other insti¬
tution declared by federal law to
be an institution of national
importance;
28. The Benares Hindu University
and the Aligarh Muslim Uni¬
versity;
29. Airways;
30. Highways and waterways de¬
clared by the Federation to be
Federal highways and water¬
ways;
31. Shipping and navigation on in¬
land waterways, declared by the
Federation to be Federal water¬
ways, as regards mechanically
propelled vessels, and the rule
of the road on such waterways;
carriage of passengers and
goods on such waterways;
32. (a) Posts and telegraphs;
2
B(13). Piracies, felonies committed
on the high seas and offences
committed in the air against
the law of nations;
B(14). Admission into, and emigra¬
tion and expulsion from, the
Union;
B(15). Port quarantine;
B(16). Import and export across
cus'oms frontiers as defined by
the Union Government;
C(l). Airways;
C(2). Highways and waterways de¬
clared by the Union to be
Union highways and water¬
ways;
C(3). Shipping and navigation on
inland waterways declared by
the Union to be Union water¬
ways, as regards mechanically
propelled vessels, and rule of
the road on such waterways,
carriage of passengers and
goods on such waterways;
C(4). (a) Posts and telegraphs:
provided that the rights exist¬
ing in favour of any individual
State unit at the date of the
establishment of the Union shall
be preserved to the unit till
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FRAMING OF INDIA’S CONSTITUTION
(b) Federal telephones, wireless,
broadcasting and other like
forms of communication; the
regulation and control of all
other telephones, wireless,
broadcasting and other like
forms of communication;
(c) Post Office Savings Bank;
33. Federal railways; the regula¬
tion of all railways (other than
minor railways) in respect of
safety, maximum and minimum
rates and fares, station and
service terminal charges, inter¬
change of traffic and the res¬
ponsibility of railway adminis¬
trations as carriers of goods
and passengers; the regulation
of minor railways in respect of
safety and the responsibility of
the administrations of such
railways as carriers of goods
and passengers;
34. Maritime shipping and naviga¬
tion, including shipping and
navigation on tidal waters;
Admiralty jurisdiction;
35. Ports declared to be major
ports by federal law including
their delimitation;
36. Aircraft and air navigation;
the provision of aerodromes,
regulation and organization of
air traffic and of aerodromes;
2
the same are modified or ex¬
tinguished by agreement bet¬
ween the Union and the unit
concerned, subject however to
the power of the Union to make
laws for the regulation and con¬
trol of the same;
(b) Union telephones, wireless,
broadcasting and other like
forms of communication; the
regulation and control of all
other telephones, wireless,
broadcasting and other like
forms of communication;
C(5). Union railways; the regula¬
tion of all railways (other than
minor railways) in respect of
safety, maximum and minimum
rates and fares, station and
service terminal charges, inter¬
change of traffic and the res¬
ponsibility of railway adminis¬
trations as carriers of goods
and passengers; the regulation
of minor railways in respect of
safety and the responsibility of
administrations of such rail¬
ways as carriers of goods and
passengers;
C(6). Maritime shipping and navi¬
gation, including shipping and
navigation on tidal waters;
Admiralty jurisdiction;
C(7). Major ports, that is to say, the
declaration and delimitation of
such ports and the constitution
and powers of port authorities
therein;
C(8). Aircraft and air navigation;
the provision of aerodromes,
regulation and organization of
air traffic and of aerodromes;
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UNION POWERS AND CONSTITUTION COMMITTEES
767
1
37. Lighthouses, including light¬
ships, beacons and other provi¬
sion for the safety of shipping
and aircraft;
38. Carriage of passengers and
goods by sea or by air;
39. The Survey of India,the Geolo¬
gical, Botanical and Zoological
Surveys of India; Federal
Meteorological organizations;
40. Inter-unit quarantine;
41. Federal judiciary;
42. Acquisition of property for the
purposes of the Federation;
43. Federal agencies and institutes
for the following purposes,
that is to say, for research, for
professional or technical train¬
ing, or for the promotion of
special studies;
44. Census;
45. Offences against laws with
respect to any of the matters in
this list;
46. Enquiries, surveys and statistics
for the purposes of the Fede¬
ration;
47. Federal services and Federal
Public Service Commission;
48. Industrial disputes concerning
Federal employees;
49. Reserve Bank of India;
50. Property of the Federation and
the revenue therefrom, but as
regards property situated in a
Province subject always to Pro*
vincial legislation, save in so
far as Federal law otherwise
provides;
51. Public debt of the Federa.
tion;
52. Currency, coinage and legal
tender;
2
C(9). Lighthouses, including light¬
ships, beacons and other provi¬
sion for the safety of shipping
and aircraft;
C(10). Carriage of passengers and
goods by sea or by air;
C(ll). Union Meteorological Ser¬
vices;
C(12). Inter-unit quarantine;
3('). Union judiciary;
3(2). Acquisition of property for
the purposes of the Union;
3(3). Union agencies and institutes
for the following purposes, that
is to say, for research, for pro¬
fessional or technical training,
or for the promotion of special
studies;
3(4). Census;
3(5). Offences against laws with
respect to any of the matters in
the list of Union powers;
3(6). Enquiries, surveys and stati¬
stics for the purposes of the
Union;
3(7). Union services;
3(8). Industrial disputes concerning
Union employees;
3(9). Reserve Bank of India;
3(10). Property of the Union and
the revenue therefrom;
3(11). Public debt of the Union;
3(12). Currency, coinage and legal
tender;
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FRAMING OF INDIA’S CONSTITUTION
1
53. Powers to deal with grave eco¬
nomic emergencies in any part
of the Federation affecting the
Federation;
54. Insurance;
55. Corporations, that is to say,
the incorporation, regulation
and winding up of trading cor¬
porations, including banking,
insurance, and financial corpo¬
rations, but not including cor¬
porations owned or controlled
by a Federated State and car¬
rying on business only within
that State or co-operative socie¬
ties, and of corporations,
whether trading or not, with
objects not confined to one
unit but not including univer¬
sities;
56. Banking;
57. Cheques, bills of exchange,
promissory notes and other like
instruments;
58. Pa ents, copyright, inventions,
designs, trade marks and mer¬
chandise marks;
59. Ancient and historical monu¬
ments;
60. Establishment of standards of
weights and measures;
61. Opium, so far as regards culti¬
vation and manufacture, or
sale for export;
62. Petroleum and other liquids
and substances declared by
Federal law to be dangerously
inflammable, so far as regards
possession, storage and trans¬
port;
63. Development of industries
where development under
Federal control is declared by
2
3(14). Powers to deal with grave
economic emergencies in any
part of the Union affecting the
Union;
5(1). Insurance;
5(2). Company law;
5(3). Banking;
5(4). Negotiable instruments;
5(5). Patents, trade marks, trade
designs, copyright;
5(6). Ancient and historical monu¬
ments;
5(7). Standards of weight and
measure;
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UNION POWERS AND CONSTITUTION COMMITTEES
769
Federal law to be expedient in
the public interest;
64. Regulation of labour and safety
in mines and oilfields;
65. Regulation of mines and oil¬
fields and mineral development
to the extent to which such
regulation and development
under Federal control is dec¬
lared by Federal law to be expe¬
dient in the public interest;
66. Extension of the powers and
jurisdiction of members of a
police force belonging to any
part of the territories of the
Federation to any area in an¬
other Governor’s Province or
Chief Commissioner’s Province,
but not so as to enable the
police of one part to exercise
powers and jurisdiction else¬
where without the consent of
the Government of the Province
or the Chief Commissioner, as
the case may be; extension of
the powers and jurisdiction of
members of a police force
belonging to any unit to
railway areas outside that unit;
67. All federal elections; and
superintendence and control of
all Federal and Provincial elec¬
tions;
68. The salaries of the Federal
Ministers and of the Chairman
and Vice-Chairman of the
Council of States and of the
Speaker and Deputy Speaker of
the House of the People; the
salaries, allowances and privi¬
leges of the members of the
Federal Parliament;
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FRAMING OF INDIA’S CONSTITUTION
1
69. The enforcement of attendance
of persons for giving evidence
or producing documents
before committees of the
Legislature;
70. Duties of customs including
export duties;
71. Duties of excise on tobacco
and other goods manufactured
or produced in India except—
(a) alcoholic liquors for human
consumption;
(b) opium, Indian hemp and
other narcotic drugs and
narcotics; non-narcotic
drugs;
(c) medicinal and toilet prepa¬
rations containing alcohol,
or any substance included
in sub-paragraph (b) of this
entry;
72. Corporation tax;
73. State lotteries;
74. Migration from one unit to
another;
75. Jurisdiction and powers of all
courts with respect to any of
the matters in this list;
76. Taxes on income other than
agricultural income;
77. Taxes on the capital value of
the assets, exclusive of agricul¬
tural land, of individuals and
companies; taxes on the capital
of companies;
78. Duties in respect of succession
to property other than agricul¬
tural land;
79. Estate duty in respect of pro¬
perty other than agricultural
land;
80. The rates of stamp duty in
respect of bills of exchange,
D(l). Duties of customs including
export duties;
D(2). Excise duties;
D(3). Corporation tax;
D(4). Taxes on income other than
agricultural income;
D(5). Taxes on the capital value of
the assets, exclusive of agricul¬
tural land, of individuals and
companies; taxes on the capital
of companies;
D(6). Duties in respect of succession
to property other than agricul¬
tural land;
D(7). Estate duty in respect of pro¬
perty other than agricultural
land;
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UNION POWERS AND CONSTITUTION COMMITTEES
771
1 2
cheques, promissory notes, bills
of lading, letters of credit,
policies of insurance, transfer of
shares, debentures, proxies and
receipts;
81. Terminal taxes on goods or
passengers carried by railway
or air; taxes on railway fares
and freights;
82. The development of inter-unit
waterways for purposes of
flood-control, navigation and
hydro-electric power;
83. Inter-unit trade and commerce;
84. Fishing and fisheries beyond
territorial waters;
85. Fees in respect of any of the
matters in this list, but not
including fees taken in any
court.
July 2, 1947
Present: (1) Dr. B. R. Ambedkar (in the Chair); (2) Sir V. T. Krishna*
machari; (3) Mr. D. P. Kbaitan; (4) Mr. P. Govinda Menon; (5) Professor
K. T. Shah; (6) Mr. Biswanath Das; (7) Lt. Col. Maharaj Shri
Himatsinhji.
In attendance: Mr. H. V. R. Iengar, Secretary; (2) Mr. B. F. H. B.
Tyabji. Deputy Secretary; (3) Mr. Jugal Kishore Khanna, Deputy Secre¬
tary.
The list of federal subjects proposed at the joint meeting of the Union
Powers and Union Constitution Committees held at 3 p. m. on the 1st
of July 1947 (as given in the note circulated by the Secretariat), were
scrutinized, and the following decisions taken;
Item 2: Consider whether the federal power to requisition land should
not be extended, e.g., for federal civil purposes.
Item 16: Substitute the word “foreign” for “other” before “countries”.
Item 32(a): Substitute the item as defined in paragraph 2-C(4Xa) of
the Report of the Union Powers Committee dated the 17th April 1947.*
The Draftsman should, however, consider whether the proviso
governing this item should be attached individually to all such items, or be
*See Document No. 30.
B(17). Fishing and fisheries beyond
territorial waters;
D(8). Fees in respect of any of the
matters in the list of Union
powers, but not including fees
taken in any court, other than
the Union Courts.
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FRAMING OF INDIA’S CONSTITUTION
incorporated as a general clause separately to govern all of them.
Item 32(b): Consider whether the use of the word “federal” is required
in both these items.
Item 34: “Admiralty jurisdiction” should be transferred from this
item, and given a place as a separate item.
Item 36: Consider whether the same phraseology as used in item 32(a)
should not be used for this item.
Item 52: Add the words “foreign exchange” after the word “currency”.
Item 60: Consider adding the words “qualities and grading”.
Item 67: Substitute the words “Election Commission to superintend and
control” for the words “and superintendence and control of’.
Item 81: Make clear in this and other similar items that though these
taxes would be collected by the Centre, the proceeds would be distributed
to the Provinces as was done under the Government of India
Act, 1935.
Item 82: Add the word “irrigation” before the word “navigation”.
Item 85: Same as against item 81.
2. It was agreed—
(a) that a clause on the lines of section 51 (xxxvii) of the Australian
Constitution, which reads as follows, should be incorporated in the
Constitution:
Section 51. The Parliament shall, subject to this Constitution, have power
to make laws for the peace, order, and good government of the Com¬
monwealth with respect to :
(xxxvii) Matters referred to the Parliament of the Commonwealth by
the Parliament or Parliaments of any State or States, but so that the
law shall extend only to States by whose Parliaments the matter is
referred, or which afterwards adopt the law.
(b) to consider the necessity of having a provision on the lines of article
I, section 8, clause (18) of the U. S. A. Constitution:
To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this Cons¬
titution in the Government of the United States, or in any department or
officer thereof.
3. After this. List II, Provincial Legislative List, and List III, Concurrent
Legislative List of the 7th Schedule of the Government of India Act, 1935,
were scrutinized. It was decided to adopt them, subject to such drafting
changes as may be necessary to bring them into conformity with the new
Constitution and the remarks given below:
list n
Item 5: Consider whether the addition of the word “borrowing” was
necessary.
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UNION POWERS AND CONSTITUTION COMMITTEES
773
Item 7: Omit the item.
Item 11: Substitute the following for the words occurring after “Provincial
Legislature”:
“subject to the provisions of item 67 of 1 ist I”.
Item 16: Insert the word “burning” after “burials”.
Item 30: Omit the words “weights and measures”. Include as a separate
item: “Administration of weights and measures”; and also consider whether
the words “qualities and grading” should be added to it.
LIST III
Part 1
Item 10: Examine the effect of the exclusion of contracts relating to
agricultural land from this item in connection with the Transfer of Pro¬
perty Act. See also item No. 21 of List U.
Item 12: Omit the words “Administrators-General and Official Trustees”,
and place them in a new item.
Item 23: Consider whether “European vagrancy” should be retained.
Part II
Note: It should be examined whether any distinction between Part I and Part
II of this list should be preserved in the new Constitution.
Item 28: Insert the words “and social” after “unemployment”.
New Items
Economic and social planning: This definition should be examined to
see whether it is sufficiently comprehensive to include all planning and the
measures required to put such planning into effect.
Salt: The implications of including this item in the Concurrent List on
federal finance as well as the arrangements in individual units should
be examined.
4. It was finally decided that in the report a paragraph on the lines of
the relevant part of paragraph 2(1) of the minutes of the first meeting* of
the Joint Sub-Committee of the Union Constitution and Provincial Consti¬
tution Committees held on the 8th June 1947, which reads as follows, should
be included:
The whole of the May 16 Statement cannot be regarded as having been
scrapped... So far as powers of the Centre are concerned, the Constituent
Assembly is free by its own decision to make such variations in the plan
of the May 16 Statement as it considers necessary. In regard to the Indian
States, the committee felt that while their entry into the Assembly con¬
tinues to be on the basis of the 16th May Statement, if the Assembly
decided to extend the scope of the Central subjects, the ceding of wider
powers by the States would be with their consent.
♦See Document No. 20(i).
50
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FRAMING OF INDIA’S CONSTITUTION
July 3, 1947
Present: (1) Pandit Jawaharlal Nehru (in the Chair); (2) Dr. Rajendra
Prasad; (3) Mr. K. M. Munshi; (4) Sir N. Gopaiaswami Ayyangar; (5) Sir
V. T. Krishnamachari; (6) Mr. P. Govinda Menon; (7) Mr. Biswanath Das;
(8) Mr. B. H. Zaidi; (9) Lt. Colonel Maharaj Shri Himatsinhji.
In attendance: (1) Sir B. N. Rau, Constitutional Adviser; (2) Mr. H. V.
R. Iengar, Secretary; (3) Mr. S. N. Mukerjee, Draftsman; (4) Mr. B.F.H.B.
Tyabji. Deputy Secretary; (S) Mr. Jugal Kishore Khanna, Deputy Secretary.
Dr. Pattabhi Sitaramayya’s note* proposing that broadcasting should be
put in the Concurrent Legislative List was considered. The committee
thought that the Centre should continue to have the exclusive power to
regulate broadcasting all over the country and accordingly decided that the
item should remain in the Federal List They noted, however, that this need
not prevent Provinces and States from operating their own broadcasting
stations as they can do at present under section 129 of the Government of
India Act, 1935.
2. The minutes of the meeting held yesterday were then considered; and
the following decisions taken on the points left over for further discus¬
sion:
LIST I—FEDERAL LEGISLATIVE LIST
Item 2: No change necessary as the Centre has already power to acquire
land for federal civil purposes.
Item 5: Remove the word “existing” and make it clear in the report that
the intention is to maintain the present co-ordination and control of Indian
State Forces.
Item 32: to read as follows:
(a) Posts and telegraphs: Provided that the rights existing in favour of
any individual State unit, at the date of the establishment of the Union,
shall be preserved to the unit till they are modified or extinguished by
agreement between the Union and the unit concerned, or are acquired by
the Union.
The Union shall in any event have the power to make laws for their re¬
gulation and control.
(b) Telephones, wireless, broadcasting and other like forms of communi¬
cation whether owned by the Federation or not.
(c) Post Office Savings Bank.
Item 36: No change necessary.
Item 50: For the words “Province” and “Provincial”, substitute the
word “unit”.
*See Document No. 31(iii).
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UNION POWBRS AND CONSTITUTION COMMITTEBS
775
Item 60: No change necessary.
Paragraph 2(b) of yesterday’s minutes: Not necessary to include a pro¬
vision on the lines of article 1, section 8, clause (18) of the U. S. A. Consti¬
tution.
New Item: Salt
Federal manufacture and distribution of salt; regulation and control of
manufacture and distribution by other agencies. It was decided to in¬
corporate a section in the Constitution itself, prohibiting the imposition of
any duty or tax on salt.
LIST II—PROVINCIAL LBGISLATIVB LIST (1935 ACT)
Item 5: No change necessary.
Item 30: Indude as a separate item “Weights and measures, except estab¬
lishment of standards”.
LIST III—CONCURRENT LEGISLATIVE LIST (1935 ACT)
Note: Not necessary to make any distinction between Part I and Part II of this
list in new Constitution.
Item 10: No change necessary.
Item 23: To read “Vagrancy; nomadic and migratory tribes”.
New Item: Economic and Social Planning
Mr. Munshi suggested the following item for the Concurrent List:
“Co-ordination of research and higher education”. This was rejected by a
majority vote on the ground that economic and sodal planning is compre¬
hensive enough to cover this item.
3. Finally, after discussion, it was dedded as follows:
(a) In the report of the committee now to be presented to the Consti¬
tuent Assembly, it will be suffident to include a paragraph on the
lines suggested in paragraph 4 of yesterday’s minutes and to say
that to the extent that List I goes beyond the scope of subjects
mentioned in the Cabinet Mission’s Plan of ,16th May, the list will
apply to States only with their consent. It is not necessary at
this stage to make a separate list of the federal subjects covered
by the 16th May Plan.
(b) So far as States are concerned, the residuary powers would vest
in them unless they consent to these powers vesting in the Centre.
(c) A paragraph on the lines of the last two sub-paragraphs of paragraph
2-D of the committee’s report dated the 18th April, 1947, should
also be included in the report.
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SECOND REPORT OF THE UNION POWERS
COMMITTEE
July-August 1947
[The decisions reached by the Union Constitution and the Union Powers
Committees at their joint meetings were incorporated in the second
report of the Union Powers Committee submitted to the President of
the Constituent Assembly on July 5, 1947. The committee came to the
conclusion that "the soundest framework of our Constitution was a
Federation with a strong Centre?’. The report was presented by Gopala-
swami Ayyangar for the consideration of the Assembly on August 20.
It was, however, not discussed in full and the Assembly considered only
the first 37 items of the Federal List. Further consideration of the
report was held over and, in fact, was never taken up again. The text
of the second report, comparative tables showing items included in the
Reports of the Union Powers Committee and the Government of India
Act, 1935, Gopalaswami AyyangaPs speech, and the report as adopted
by the Assembly, are reproduced below.]
(i) TEXT OF THE REPORT
July 5, 1947
From
Pandit Jawaharlal Nehru,
Chairman, Union Powers Committee.
To
The President,
Constituent Assembly of India.
Sir,
On the 28th April 1947, the Honourable Sir N. Gopalaswami Ayyangar,
on behalf of our committee, presented our first report to the Constituent
Assembly. In doing so, he referred to the changes that were developing
in the political situation and were likely to affect the nature and scope of
the committee’s recommendations, and sought permission to submit a
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SECOND REPORT OF THE UNION POWERS COMMITTEE
777
supplementary report at a later date. The House was pleased to grant us
leave to do so.
2. Momentous changes have since occurred. Some parts of the
country are seceding to form a separate State, and the plan put forward
in the Statement of the 16th May on the basis of which the committee
was working, is, in many essentials, no longer operative. In particular,
we are not now bound by the limitations on the scope of Union powers.
The first point accordingly that we considered was whether, in the changed
circumstances, the scope of these powers should not be widened. We had
no difficulty in coming to a conclusion on this point. The severe limi¬
tation on the scope of central authority in the Cabinet Mission’s Plan was
a compromise accepted by the Assembly much, we think, against its judg¬
ment of the administrative needs of the country, in order to accommodate
the Muslim League. Now that partition is a settled fact, we are unani¬
mously of the view that it would be injurious to the interests of the
country to provide for a weak central authority which would be incapable
of ensuring peace, of co-ordinating vital matters of common concern
and of speaking effectively for the whole country in the international
sphere. At the same time, we are quite clear in our minds that there are
many matters in which authority must lie solely with the units and that
to frame a constitution on the basis erf a unitary State would be a retro¬
grade step, both politically and administratively. We have accordingly
come to ffie conclusion—a conclusion which was also reached by the Union
Constitution Committee—that the soundest framework for our Constitution
is a Federation, with a strong Centre. In the matter of distributing powers
between the Centre and the units, we think that the most satisfactory
arrangement is to draw up three exhaustive lists on the lines followed in
the Government of India Act of 1935, viz., the Federal, the Provincial and
the Concurrent. We have prepared three such lists accordingly and these are
shown in the Appendix.
We think that residuary powers should remain with the Centre. In
view however of the exhaustive nature of the three lists drawn up by us, the
residuary subjects could only relate to matters which, while they may
claim recognition in the future, are not at present identifiable and cannot
therefore be included now in the lists.
3. It is necessary to indicate the position of Indian States in the scheme
proposed by us. The States which have joined the Constituent Assembly
have done so on the basis of the 16th May Statement. Some of them have
expressed themselves as willing to cede wider powers to the Centre than
contemplated in that Statement. But we consider it necessary to point
out that the application to States in general of the Federal List of subjects,
in so far as it goes beyond the 16th May Statement, should be with their
consent. It follows from this that in their case residuary powers would
vest with them unless they consent to their vesting in the Centre.
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FRAMING OF INDIA’S CONSTITUTION
4. To enable States and, if they so think fit. Provinces also, to cede
wider powers to the Centre, we recommend that the Constitution shook!
empower the Federal Government to exercise authority within the Federa¬
tion on matters referred to them by one or more units, it being under¬
stood that the law would extend only to the units by which the matter
is referred or which afterwards adopt the law. This follows the Austra¬
lian model as set out in section 51(xxxvii) of the Australian Constitution
Act
5. We have included in the Federal List the item “the strength, organiza¬
tion and control of the armed forces raised and employed in Indian States”.
Our intention in doing so is to maintain all the existing powers of co¬
ordination and control exercised over such forces.
6. We recommend to the Assembly the proposals contained in paragraph
2-D of our previous report on the subject of federal taxation. It is quite
clear, however, that the retention by the Federation of the proceeds of
all the taxes specified by us would disturb, in some cases violently, the
financial stability of the units and we recommend therefore that provision
should be made for an assignment, or a sharing, of the proceeds of some
of these taxes on a basis to be determined by the Federation from time to
time.
I have etc.,
Jawaharlal Nehru,
Chairman.
APPENDIX
LIST I—FEDERAL LEGISLATIVE LIST
1. The defence of the territories of the Federation and of every part thereof and
generally all preparation for defence, as well as all such acts as may be conducive
in times of war to its successful prosecution and after its termination to effective
demobilization.
2. Requisitioning of lands for defence purposes including training and manoeuvres.
3. Central Intelligence Bureau.
4., Preventive detention in the territories of the Federation for reasons of State.
5. The raising, training, maintenance and control of naval, military and air
forces and employment thereof for the defence of the territories of the Federation
and for the execution of the laws of the Federation and its units: the strength,
organization and control of the armed forces raised and employed in Indian
States.
6. Defence industries.
7. Naval, military and air force works.
8. Local self-government in cantonment areas, the constitution and powers within
such areas of cantonment authorities, the regulation of house accommodation in such
areas and the delimitation of such areas.
9. Arms, fire-arms, ammunition and explosives.
10. Atomic energy, and mineral resources essential to its production.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
779
11. Foreign affairs; all matters which bring the Federation into relation with any
foreign country.
12. Diplomatic, consular and trade representation.
13. United Nations Organisation
14. Participation in international conferences, associations and other bodies and
implementing of decisions made thereat
15. War and peace.
16. The entering into and implementing of treaties and agreements with foreign
countries.
17. Trade and commerce with foreign countries.
18. Foreign loans.
19. Citizenship, naturalization and aliens.
20. Extradition.
21. Passports and visas.
22. Foreign jurisdiction.
23. Piracies, felonies committed on the high seas and offences committed in the
air against the law of nations.
24. Admission into, and emigration and expulsion from, the territories of the
Federation; pilgrimages to places beyond India.
25. Port quarantine; seamen's and marine hospitals, and hospitals connected with
port quarantine.
26. Import and export across customs frontiers as defined by the Federal
Government
27. The institutions known on the 15th day of August, 1947, as the Imperial
Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial and
any other institution declared by Federal law to be an institution of national
importance.
28. The institutions known on the 15th day of August, 1947, as the Benares
Hindu University and the Aligarh Muslim University.
29. Airways.
30. Highways and waterways declared by the Federal Government to be Federal
highways and waterways.
31. Shipping and navigation on inland waterways declared by the Federal
Government to be Federal waterways, as regards mechanically propelled vessels, and
the rule of the road on such waterways; carriage of passengers and goods on such
waterways.
32. (a) Posts and telegraphs, provided that the rights existing in favour of any
individual State unit at the commencement of this Constitution shall be preserved
to the unit until they are modified or extinguished by agreement between the Federa¬
tion and the unit concerned or are acquired by the Federation subject, however,
always to the power of the Federal Parliament to make laws for their regulation
and control;
(b) Telephones, wireless, broadcasting, and other like forms of communication,
whether owned by the Federation or not;
(c) Post Office Savings Bank.
33. Federal railways; the regulation of all railways (other than minor railways)
in respect of safety, maximum and minimum rates and fares, station and service
terminal charges, interchange of traffic and the responsibility of railway administra¬
tions as carriers of goods and passengers; the regulation of minor railways in respect
of safety and the responsibility of the administrations of such railways as carriers
of goods and passengers.
34. Maritime shipping and navigation, including shipping and navigation on tidal
waters.
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FRAMING OF INDIA’S CONSTITUTION
35. Admiralty jurisdiction.
36. Ports declared to be major ports by or under Federal law or existing Indian
law including their delimitation.
37. Aircraft and air navigation: the provision of aerodromes, regulation and
organization of air traffic and of aerodromes.
38. Lighthouses, including lightships, beacons and other provisions for the safety
of shipping and aircraft
39. Carriage of passengers and goods by sea or by air.
40. The Survey of India, the Geological, Botanical and Zoological Surveys of
India; Federal Meteorological organizations.
41. Inter-unit quarantine.
42. Federal judiciary.
43. Acquisition of property for the purposes of the Federation
44. Federal agencies and institutes for the following purposes, that is to say, for
research, for professional or technical training, or for the promotion of special
studies.
45. Census.
46. Offences against laws with respect to any of the matters in this list.
47. Enquiries, surveys and statistics for the purposes of the Federation.
48. Federal services and Federal Public Service Commission.
49. Industrial disputes concerning Federal employees.
50. Reserve Bank of India.
51. Property of the Federation and the revenue therefrom, but as regards property
situated in a unit subject always to legislation by the unit, save in so far as Federal
law otherwise provides.
52. Public debt of the Federation.
53. Currency, foreign exchange, coinage and legal tender.
54. Powers to deal with grave economic emergencies in any part of the territories
of the Federation affecting the Federation.
55. Insurance.
56. Corporations, that is to say, the incorporation, regulation and winding up of
trading corporations, including banking, insurance and financial corporations, but
not including corporations owned or controlled by a federated State and carrying
on business only within that State or co-operative societies, and of corporations,
whether trading or not, with objects not confined to one unit, but not including
universities.
57. Banking.
58. Cheques, bills of exchange, promissory notes and other like instruments.
59. Patents, copyright, inventions, designs, trade marks and merchandise marks.
60. Ancient and historical monuments: archaeological sites and remains.
61. Establishment of standards of weight and measure.
62. Opium, so far as regards cultivation and manufacture, or sale for export
63. Petroleum and other liquids and substances declared by Federal law to be
dangerously inflammable, so far as regards possession, storage and transport
64. Development of industries where development under Federal control is dec¬
lared by Federal law to be expedient in the public interest
65. Regulation of labour and safety in mines and oilfields.
66. Regulation of mines and oilfields and mineral development to the extent to
which such regulation and development under Federal control is declared by Federal
law to be expedient in the public interest
67. Extension of the powers and jurisdiction of members of a police force belong¬
ing to any part of a Governor’s Province or Chief Commissioner’s Province to any
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SECOND REPORT OF THE UNION POWERS COMMITTEE
781
area in another Governor’s Province or Chief Commissioner's Province, but not so as
to enable the police of one part to exercise powers and jurisdiction elsewhere with¬
out the consent of the Government of the Province or the Chief Commissioner, as
the case may be; extension of the powers and jurisdiction of members of a police
force belonging to any unit to railway areas outside that unit
68. All Federal elections; and Election Commission to superintend, direct and
control all Federal and Provincial elections.
69. The salaries of the Federal Ministers and of the Chairman and Vice-Chairman
of the Council of States and of the Speaker and Deputy Speaker of the House of
the People; the salaries, allowances and privileges of the members of the Federal
Parliament
70. The enforcement of attendance of persons for giving evidence or producing
documents before committees of the Federal Parliament
71. Duties of customs including export duties.
72. Duties of excise on tobacco and other goods manufactured or produced in
India except—
(a) alcoholic liquors for human consumption;
(b) opium, Indian hemp and other narcotic drugs and narcotics; non-narcotic
drugs;
(c) medicinal and toilet preparations containing alcohol, or any substance in¬
cluded in sub-paragraph (b) of this entry.
73. Corporation tax.
74. State lotteries.
75. Migration from one unit to another.
76. Jurisdiction and powers of all courts, with respect to any of the matters in
this list
77. Taxes on income other than agricultural income.
78. Taxes on the capital value of the assets, exclusive of agricultural land, of
individuals and companies; taxes on the capital of companies.
79. Duties in respect of succession to property other than agricultural land.
80. Estate duty in respect of property other than agricultural land.
81. The rates of stamp duty in respect of bills of exchange, cheques, promissory
notes, bills of lading, letters of credit, policies of insurance, transfer of shares,
debentures, proxies and receipts.
82. Terminal taxes on goods or passengers, carried by railway or air; taxes on
railway fares and freights.
83. The development of inter-unit waterways for purposes of flood control,
irrigation, navigation and hydro-electric power.
84. Inter-unit trade and commerce.
85. Fishing and fisheries beyond territorial waters.
86. Federal manufacture and distribution of salt; regulation and control of manu¬
facture and distribution of salt by other agencies.
Note: A section should be incorporated in the Constitution itself prohibiting the
imposition of any duty or tax on salt
87. Fees in respect of any of the matters in this list, but not including fees
taken in any court
LIST II—PROVINCIAL LEGISLATIVE LIST
1. Public order (but not including the use of naval, military or air forces in aid
of the civil power); the administration of justice; constitution and organization of all
courts, except the Supreme Court, and fees taken therein; preventive detention for
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782
FRAMING OF INDIA’S CONSTITUTION
reasons connected with the maintenance of public order; persons subjected to such
detention.
2. Jurisdiction and powers of all courts except the Supreme Court, with respect to
any of the matters in this list; procedure in Rent and Revenue Courts.
3. Police, including railway and village police.
4. Prisons, reformatories, borstal institutions and other institutions of a like
nature, and persons detained therein; arrangements with other units for the use of
prisons and other institutions.
5. Public debt of the Province.
6. Provincial Public Services and Provincial Public Service Commissions.
7. Works, lands and buildings vested in or in the possession of the Province.
8. Compulsory acquisition of land except for the purposes of the Federation.
9. Libraries, museums and other similar institutions controlled or financed by the
Province.
10. Elections to the Provincial Legislature and of the Governors of the Provinces
subject to the provisions of paragraph 68 of List I.
11. The salaries of the Provincial Ministers, of the Speaker and Deputy Speaker
of the Legislative Assembly, and, if there is a Legislative Council, of the Chairman
and Deputy Chairman thereof; the salaries, allowances and privileges of the mem¬
bers of the Provincial Legislature; and the enforcement of attendance of persons for
giving evidence or producing documents before committees of the Provincial Legis¬
lature.
12. Local—Government, that is to say, the constitution and powers of municipal
corporations, improvement trusts, district boards, mining settlement authorities
and other local authorities for the purpose of local self-government or village
administration.
13. Public health and sanitation; hospitals and dispensaries; registration of births
and deaths.
14. Pilgrimages, other than pilgrimages to places beyond India.
15. Burials, and burial and burning grounds.
16. Education including universities other than those specified in paragraph 28
of List I.
17. Communications, that is to say, roads, bridges, ferries, and other means of
communication not specified in List I; minor railways subject to the provisions of
List I with respect to such railways; municipal tramways; ropeways; inland water¬
ways and traffic thereon subject to the provisions of List I and List III with regard
to such waterways; ports, subject to the provisions in List I with regard to major
ports; vehicles other than mechanically propelled vehicles.
18. Water, that is to say, water supplies, irrigation and canals, drainage and em¬
bankments, water storage and water power.
19. Agriculture, including agricultural education and research, protection against
pests and prevention of plant diseases; improvement of stock and prevention of
animal diseases; veterinary training and practice; pounds and the prevention of cattle
trespass.
20. Land, that is to say, rights in or over land, land tenures, including the relation
of landlord and tenant, and the collection of rents; transfer, alienation and devolution
of agricultural land; improvement and agricultural loans; colonization; Courts of
Wards; encumbered and attached estates, treasure trove.
21. Forests.
22. Regulation of mines and oilfields and mineral development subject to the
provisions of List I with respect to regulation and development under federal control.
23. Fisheries.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
783
24. Protection of wild birds and wild animals.
25. Oas and gasworks.
26. Trade and commerce within the Province, markets and fairs.
27. Money lending and money lenders.
28. Inns and innkeepers.
29. Production, supply and distribution of goods; development of industries,
subject to the provisions in List I with respect to the development of certain indus¬
tries under Federal control.
30. Adulteration of foodstuffs and other goods.
31. Weights and measures except establishment of standards.
32. Intoxicating liquors and narcotic drugs, that is to say, the production, manu¬
facture, possession, transport, purchase and sale of intoxicating liquors, opium and
other narcotic drugs, but subject, as respects opium, to the provisions of List I and,
as respect poisons and dangerous drugs, to the provisions of List III.
33. Relief of the poor; unemployment
34. The incorporation, regulation, and winding up of corporations not being
corporations specified in List I, or universities; unincorporated trading, literary,
scientific, religious and other societies and associations; co-operative societies.
35. Charities and charitable institutions; charitable and religious endowments.
36. Theatres, dramatic performances and cinemas, but not including the sanction
of cinematograph films for exhibition.
37. Betting and gambling.
38. Offences against laws with respect to any of the matters in this List
39. Inquiries and statistics for the purpose of any of the matters in this List
40. Land revenue, including the assessment and collection of revenue, the
maintenance of land records, survey for revenue purposes and records of rights, and
alienation of revenue.
41. Duties of excise on the following goods manufactured or produced in the
Province and countervailing duties at the same or lower rates on similar goods manu¬
factured or produced elsewhere in the territories of the Federation :
(a) alcoholic liquors for human consumption;
(b) opium, Indian hemp and other narcotic drugs and narcotics; non-narcotic
drugs;
(c) medicinal and toilet preparations containing alcohol or any substance in¬
cluded in sub-paragraph (b) of this entry.
42. Taxes on agricultural income.
43. Taxes on lands and buildings, hearths and windows.
44. Duties in respect of succession to agricultural land.
45. Estate duty in respect of agricultural land.
46. Taxes on mineral rights, subject to any limitations imposed by any Act of
the Federal Parliament relating to mineral development
47. Capitation taxes.
48. Taxes on professions, trades, callings and employments.
49. Taxes on animals and boats.
50. Taxes on the sale of goods and on advertisements.
51. Taxes on vehicles suitable for use on roads, whether mechanically propelled
or not, including tramcars.
52. Taxes on the consumption or sale of electricity.
53. Cesses on the entry of goods into a local area for consumption, use or sale
therein.
54. Taxes on luxuries, including taxes on entertainments, amusements, betting and
gambling.
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FRAMING OF INDIA’S CONSTITUTION
55. The rates of stamp duty in respect of documents other than those specified
in the provisions of List I with regard to rates of stamp duty.
56. Dues on passengers and goods carried on inland waterways.
57. Tolls.
58. Fees in respect of any of the matters in this List, but not including fees
taken in any court
LIST III—CONCURRENT LEGISLATIVE LIST
1. Criminal Law, including all matters included in the Indian Penal Code at the
date of commencement of this Constitution, but excluding offences against laws with
respect to any of the matters specified in List I or List II and excluding the use
of the naval, military and air forces in aid of the civil power.
2. Criminal Procedure, including all matters included in the Code of Criminal
Procedure at the date of commencement of this Constitution.
3. Removal of prisoners and accused persons from one unit to another unit.
4. Civil Procedure, including the Law of Limitation and all matters included in
the Code of Civil Procedure at the date of commencement of this Constitution; the
recovery in a Governor’s Province or a Chief Commissioner’s Province of claims in
respect of taxes and other public demands, including arrears of land revenue and
sums recoverable as such, arising outside that Province.
5. Evidence and oaths; recognition of laws, public acts and records and judicial
proceedings.
6. Marriage and divorce; infants and minors; adoption.
7. Wills, intestacy, and succession, save as regards agricultural land.
8. Transfer of property other than agricultural land; registration of deeds and
documents.
9. Trusts and Trustees.
10. Contracts, including partnership, agency, contracts of carriage, and other
special forms of contracts, but not including contracts relating to agricultural land.
11. Arbitration.
12. Bankruptcy and insolvency.
13. Administrators-general and official trustees.
14. Stamp duties other than duties or fees collected by means of judicial stamps,
but not including rates of stamp duty.
15. Actionable wrongs, save in so far as included in laws with respect to any of
the matters specified in List II.
16. Jurisdiction and powers of all courts, except the Supreme Court, with respect
to any of the matters in this List.
17. Legal, medical and other professions.
18. Newspapers, books and printing presses.
19. Lunacy and mental deficiency, including places for the reception or treatment
of lunatics and mental deficients.
20. Poisons and dangerous drugs.
21. Mechanically propelled vehicles.
22. Boilers.
23. Prevention of cruelty to animals.
24. Vagrancy; nomadic and migratory tribes.
25. Factories.
26. Welfare of labour; conditions of labour; provident funds; employers’ liability
and workmen’s compensation; health insurance, including invalidity pensions; old
age pensions.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
785
27. Unemployment and social insurance.
28. Trade unions, industrial and labour disputes.
29. The prevention of the extension from one unit to another of infectious or
contagious diseases or pests affecting men, animals or plants.
30. Electricity.
31. Shipping and navigation on inland waterways as regards mechanically pro*
pelled vessels, and the rule of the road on such waterways, and the carriage of
passengers and goods on inland waterways subject to the provisions of List I with
respect to Federal waterways.
32. The sanctioning of cinematograph films for exhibition.
33. Persons subjected to preventive detention under Federal authority.
34. Economic and social planning.
35. Inquiries and statistics for the purpose of any of the matters in this List.
36. Fees in respect of any of the matters in this List, but not including fees taken
in any court
(n) COMPARATIVE TABLES SHOWING ITEMS INCLUDED IN THE
REPORTS OF THE UNION POWERS COMMITTEE AND THE 1935 ACT
(a) subjects as shown in thb reports of the union powers committee
AND SEVENTH SCHEDULE OF THE 1935 ACT
Union Powers Committee Second
Report
Union Powers Com¬
mittee First Report
Govt of India Act,
1935—7th Schedule
I
II
ra
A. Defence
A. Defence
A. Defence
1. Defence of the territories of Federa-
1. Defence Forces of
1. Defence Forces of
tion—acts and preparations for
the Union—Same
His Majesty—
successful prosecution of war in-
as in column 1,
(a) Excluding forces
eluding demobilization after termi-
with the differen-
employed by
nation of war.
cethat State for-
States and armed
ces are specially
police of the
mentioned in this
Provinces.
list.
(b) Forces attached
to His Majesty’s
Defence Forces—
List I.
2. Requisitioning of lands
2. No provision.
2. No provision, but
(Please see para¬
see item **10”—
graph 3, item 2.)
works, land and
buildings vested
in His Majesty
for Federal pur¬
poses.
3. Central Intelligence Bureau •
3. No Provision
3. See item 1.
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786
FRAMING OF INDIA’S CONSTITUTION
I
11
in
4. Detention for reasons of State
4. No provision
4. See item 1.
5. Raising, training, maintenance and
control of Defence Forces.
5. See item A(l)
5. See item 1—State
Forces are ex¬
cluded.
6. Defence industries
6. See item A(2)
6. Nil
7. Naval, military and air force works
7. See item A(3)
7. See item 2.
8. Local self-Oovemment in canton-
8. See item A(4)
8. See item 2.
ment areas.
9. Arms, fire-arms, ammunition and
explosives.
9. See item A(5)
9. See items 29,30 and
32.
10. Atomic energy and mineral resour-
10. See item A(6)
10. NO.
ces.
11. Nil.
11. Powers of emer¬
gency contain¬
ed in sections
102 and 126A of
the Govt of
India Act, 1935
(Para 2-A).
11. Same as in column
two.
B. Foreign Affairs
B. Foreign Affairs
B. External Affairs
12. Diplomatic, consular and trade re¬
presentation.
12. See item B(l)
12. Nil. Item 3—Ex¬
ternal affairs cov-
vcred generally.
13. U. N. O.
13. See item B(2)
13. Nil
14. Participation in international con-
14. See item B(3)
14. Nil.
ferences, etc.
15. War and peace ....
15. See item B(4)
15. Nil.
16. Treaties and agreements with foreign
16. See item B(5)
16. See item 3.
countries.
17. Trade and commerce with foreign
countries.
17. See item B(6)
17. Nil.
18. Foreign loans ....
18. See item B(7) .
18. Nil
19. Citizenship, naturalization and
19. Naturalization and
19. See item 49—only
aliens.
aliens—B(8).
naturalization.
20. Extradition.
20. See item B(9)
20. See item 3, List I.
21. Passports and visas
21. See item B(10)
21. See item 17.
22. Foreign jurisdiction
22. See item B(ll) .
22. Nil.
23. Piracies, felonies on high seas and
23. See item B(13) .
23. Nil.
offences committed in the air
against law of nations.
24. Admission into and emigration and
expulsion from the federal terri¬
tories.
24. See item B(I4) .
24. See item 17 with
some difference in
effect and word-
•
ing.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
787
25. Port quarantine, seamen’s and
marine hospitals and hospitals
connected with port quarantine.
26. Import and export across customs
frontiers as defined by federal
Government.
27. Institutions known on the 15th day
of August 1947 as the Imperial
Library, the Indian Museum, the
Imperial War Museum, the Vic¬
toria Memorial and other institu¬
tions of national importance de¬
clared as such by federal law.
28. Benares and Aligarh Universities .
C. Communications
29. Airways.
30. Highways and waterways declared by
Federal Government to be Federal
highways and waterways.
31. Shipping and navigation on inland
waterways, declared by the Federal
Government to be Federal water¬
ways as regards mechanically
propelled vessels and the rule of
the road on such waterways; car¬
riage of passengers and goods on
such waterways.
32. (a) Posts and telegraphs
(b) Telephones, wireless, broad¬
casting, and other like forms
of communications whether
owned by Federation or not.
(c) Post Office Savings Bank .
33. Federal railways regarding adminis¬
tration as carriers of goods and
passengers.
34. Maritime shipping and navigation
including navigation and ship¬
ping on tidal waters.
35. Admiralty jurisdiction
II IU
25. Port quarantine— 25. See item 18.
B(15)
26. See item B(16) . 26. See Item 19.
27. Nil—perhaps due 27. See item 11 diffe-
to partition but rence in wording,
see item 7 of Part
V: •'Ancient and
Historical Monu¬
ments”.
28. Nil . . 28. See item 13.
C. Communications C. Communications
29. See item C(l) . 29. NiL (But see item
24.)
30. See item C(2) . 30. Nil
31. See item C(3) . 31. See Item 32 of the
Concurrent List
32. (a) See item C(4) 32. (a) See Item 7 with
(a). some difference of
wording.
(b) See item C(4Xb) (b) See item 7 with
some difference.
(c) Nil—perhaps (c) See item 7 with
due to partition. some difference.
[Please see item
C(4Xa).]
33. See item C(5) . 33. See item 20.
34. See item C(6) . 34. See item 21.
35. See item B(12) . 35. See item 21.
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788
FRAMING OF INDIA’S CONSTITUTION
I
II
HI
36. Ports declared to be m^jor ports by
36. See item CO) —
36. See item 22—Ma-
or under Federal law or existing
Major ports, that
jor ports, i.e., the
Indian law including the delimita-
is to say, the
declaration and
tion.
declaration and
delimitation of
such ports and
the constitution
and powers of
port authorities
therein.
delimitation of
such ports and
the constitution
and powers of
port authorities
therein.
37. Aircraft and air navigation, the
37. See item C(8)
37. See item 24.
provisions of aerodromes, regu¬
lation and organization of air
traffic and aerodromes.
38. Lighthouses ....
38. See item C(9)
38. See item 25.
39. Carriage of passengers and goods
39. See item C(10)
39. See item 26.
by sea or by air.
40. Meteorological organizations .
40. See item C(11) .
40. See item 14.
41. Inter-unit quarantine
41. See item C(12)
41. Nil But see item
18—Port qua¬
rantine ; Old
Oovt. had sought
administrative co¬
operation, e.g.
plague last cen¬
tury. See item
30 of the Con¬
current List.
42. Federal judiciary ....
42. See item 3(1)—
Union judiciary.
42. NO. But see item 53.
43. Acquisition of property .
43. See item 3(2)
43. See item 10. (Totally
different in word,
ing and effect.)
44. Agencies and institutes for research
44. See item 3(3)
44. See item 12.
work, etc.
45. Census.
45. See item 3(4)
45. See item 16.
46. Offences against matters mentioned
46. See item 3(5)
46. See item 42.
in this list.
47. Enquiries, surveys and statistics for
47. See item 3(6)
47. See item 43.
the purposes of the Federation.
48. Federal Services and Commission .
48. See item 3(7)
48. See item 8.
49. Industrial disputes concerning fede¬
ral employees.
49. See item 3(8)
49. NO. (See item 29 of
the Concurrent
List.)
50. Reserve Bank of India .
50. See item 3(9)
50. Nil; but see item
38 and section
152 of the Act.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
789
31 , Property of the Federation . . 51. See item 3(10)
52. Public debt of the Federation . 52. See item 3(11)
53. Currency, foreign exchange and 53. See item 3(12)
legal tender.
54. Powers to deal with grave economic 54. See item 3(14)
emergencies in any part of the
territories of the Federal Union
affecting the Federation.
55. Insurance.55. See item 5(1)
56. Corporations, their incorporation 56. Company Law
and winding up. State-controlled —5(2).
corporations and universities
being excluded.
57. Banking.57. See item 5(3)
58. Cheques and other negotiable ins- 58. See item 5(4)
truments.
59. Patents, trade marks, trade designs, 59. See item 5(5), ex¬
copyright, inventions and mer- eluding inven-
chandise marks. tions and mer¬
chandise marks.
60. Ancient and historical monuments, 60. See item 5(7),
archaeological sites and remains. excluding ar¬
chaeological sites
and remains.
61. Establishment of standards of 61. See item 5(8)
weight and measure.
62. Opium so far as regards cultivation 62. Nil
and manufacture, or sale for export.
63. Petroleum and other liquids and 63. Nil
substances declared by Federal
law to be dangerously inflammable.
64. Development of industries declared 64. See item 5(6). —
expedient in public interest under Planning.
Federal law.
65. Regulation of labour and safety in 65. Nil; but see
mines and oilfields. item 3(13).
66. Regulation of mines and oilfields 66. Nil; but see item
declared expedient in the public 3(13).
interest under Federal law.
51
51. Seeitem 10. (Diffe¬
rence in word¬
ing and scope.)
52. See item 6.
53. See item 5.
54. Nil. But famine
areas have been
assisted by the
Centre in the past.
55. See item 37. (State
and Provincial
insurance busi¬
ness or under¬
taking excluded.)
56. See item 33. (Taken
verbatim .)
57. See item 38. (State
controlled bank¬
ing business spe¬
cifically excluded.)
58. See item 28, ver-
batim.
59. See item 27.
60. See item 15.
61. See item 51.
62. See item 31.
63. See item 32.
64. See item 34,
65. See item 35.
66. See item 36.
Digitized by Google
790
FRAMING OF INDIA’S CONSTITUTION
67 .Extension of powers and jurisdiction 67. Nil . . 67. See item 39,
of police force of a Province to verbatim.
Railway areas outside their area.
68. All Federal and Provincial elections 68. Nil . . 68. See item 40. (Diffe-
and machinery to control them. rence in wording
and effect)
69. Remuneration of Federal execu- 69. Nil . 69. See item 41.
tive and legislature.
70. Enforcing attendance of witnesses 70. Nil . 70 . See item 41
and evidence before committees of
Federal Parliament.
D. Finance
71. Duties of customs, including export
duties.
72. Duties of excise on tobacco and
other goods manufactured or pro¬
duced in India with certain excep¬
tions.
73. Corporation tax
74. State lotteries .
75. Migration from one unit to another
76. Jurisdiction and powers of all courts
with respect to any of the matters
in this list
77. Taxes on income other than agricul¬
tural income.
78. Taxes on the capital value of assets
and that of companies
79. Duties on succession to property
other than agricultural land.
80. Estate duties in respect of property
other than agricultural land.
81. Rates of stamp duty on negotiable
instruments.
82. Terminal taxes on goods and passen¬
gers ; freights and fares by air or
railway.
83. Development of inter-unit water¬
ways.
84. Inter-unit trade and commerce
85. Fishing and fisheries beyond terri¬
torial waters.
86. Manufacture of salt and its distri¬
bution and regulation.
87. Fees in respect of any of the matters
in this list but not including fees
taken in any court.
D. Finance
D. Finance
71. D(l)
71. See item 44.
72. D(2)—Excise du¬
72. See item 45*
ties. (Difference
in wording.)
Verbatim.
73. D(3) .
73. See item 46.
Verbatim.
74. Nil
74. See item 48.
Verbatim.
75. Nil
75. See item 50; (diffe¬
rence in scope and
wording.)
76. Nil
76. See item 53; (diffe¬
rence in wording.)
77. D(4) .
77. See item 54.
78. D(5) .
78. See item 55.
79. D(6) .
79. See item 56.
80. D(7) .
80. Nil.
81. Nil
81. See item 57.
82. Nil . .
82. See item 58.
83. Nil .
83. Nil.
84. Nil .
84. Nil.
85. B(17)
85. See item 23.
86. Nil .
86. See item 47, men¬
tioning only salt.
87. D(8) .
87. See item 59.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
791
(b) PROVINCIAL SUBJECTS AS SHOWN IN THB SECOND REPORT OF THE UNION
POWERS COMMITTEE AND THE SEVENTH SCHEDULE OF THE 1935 ACT
[Note: Union Powers Committee’s first Report did not contain Provincial List]
Union.Powers Committee
Second Report
Govt of India Act,
1935—7th Schedule
I
II
LIST II—Provincial Legislative List
LIST II—Provincial
Legislative List
1. Public order (but not including the use of naval, military or air
forces in aid of the civil power) ; the administration of justice ;
constitution and organization of all courts, except the Supreme
Court, and fees taken therein ; preventive detention for reasons
connected with the maintenance of public order ; persons sub¬
jected to such detention.
2. Jurisdiction and powers of all courts, except the Supreme
Court, with respect to any of the matters in this list; proce¬
dure in Rent and Revenue Courts.
3. Police including railway and village police ....
4. Prisons, reformatories, borstal institutions and other institu¬
tions of a like nature, and persons detained therein ; arrange¬
ments with other units for the use of prisons and other insti¬
tutions.
5. Public debt of the Province •
6. Provincial Public Services and Provincial Public Service Com¬
missions.
7. Works, lands and b uilding s vested in or in the possession of the
Province.
8. Compulsory acquisition of land except for the purposes of the
Federation.
9. Libraries, museums and other similar institutions controlled or
financed by the Province.
10. Elections to the Provincial Legislature and of the Governors of
the Provinces subject to the provisions of paragraph 68 of
List I.
11. The salaries of the Provincial Ministers, of the Speaker and
Deputy Speaker of the Legislative Assembly, and, if there is
a Legislative Council, of the Chairman and Deputy Chairman
thereof; the salaries, allowances and privileges of the members
of the Provincial Legislature ; and the enforcement of atten¬
dance of persons for giving evidence or producing documents
before committees of the Provincial Legislature.
12. Local Government, that is to say, the constitution and powers
of municipal corporations, improvement trusts, district boards,
mining settlement authorities and other local authorities for
the purpose of local self-government or village administra¬
tion.
See item 1.
See item 2.
See item 3.
See item 4.
See item 5.
See item 6.
See item 8.
See item 9.
See item 10.
See item 11.
See item 12.
See item 13.
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FRAMING OF INDIA S CONSTITUTION
I
II
13. Public health and sanitation; hospitals and dispensaries; regis¬
tration of births and deaths.
14. Pilgrimages, other than pilgrimages to places beyond India •
15. Burials, and burial and burning grounds . . • •
16. Education including universities other than those specified in
paragraph 28 of List I.
17. Communications, that is to say, roads, bridges, ferries, and
other means of communication not specified in List I; minor
railways subject to the provisions of List I with respect to such
railways ; municipal tramways ; ropeways ; inland waterways
and traffic thereon subject to the provisions of List I and List
III with regard to such waterways ; ports subject to the pro¬
visions in List I with regard to major ports ; vehicles other than
mechanically propelled vehicles.
18. Water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage and water power.
19. Agriculture, including agricultural education and research,
protection against pests and prevention of plant diseases, im¬
provement of stock and prevention of animal diseases ; veteri¬
nary training and practice; pounds and the prevention of cattle
trespass.
20. Land, that is to say, rights in or over land, land tenures, includ¬
ing the relation of landlord and tenant, and the collection of
rents; transfer, alienation and devolution of agricultural land;
land improvement and agricultural loans; colonization ; Courts
of Wards ; encumbered and attached estates, treasure trove.
21. Forests.
22. Regulation of mines and oilfields and mineral development sub¬
ject to the provisions of List I with respect to regulation and
development under Federal control.
23. Fisheries.
24. Protection of wild birds and wild animals ....
25. Gas and gasworks.
26. Trade and commerce within the Province ; markets and fairs .
27. Money lending and money lenders.
28. Inns and innkeepers.
29. Production, supply and distribution of goods ; development of
industries, subject to the provisions of List I with respect to the
development of certain industries under Federal control.
30. Adulteration of foodstuffs and other goods ....
31. Weights and measures except establishment of standards
32. Intoxicating liquors and narcotic drugs, that is to say, the pro¬
duction, manufacture, possession, transport, purchase and
sale of intoxicating liquors, opium and other narcotic drugs,
but subject, as respects opium, to the provisions of List I and,
as respects poisons and dangerous drugs, to the provisions of
List m.
33. Relief of the poor, unemployment .
See item 14.
See item 15.
See item 16.
See item 17.
See item 18
See item 19 ;
See item 20.
See item 21.
See item 22.
See item 23.
See item 24.
See item 25.
See item 26.
See item 27.
See item 27.
See item 28.
See item 29.
See item 30.
See item 30.
See item 31.
See item 32.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
793
I II
34. The incorporation, regulation, and winding up of corporations See item 33.
not being corporations specified in List I, or universities ; un¬
incorporated trading, literary, scientific, religious and other
societies and associations ; co-operative societies.
35. Charities and charitable institutions ; charitable and religious See item 34.
endowments.
36. Theatres, dramatic performances and cinemas, but not includ- See item 35.
ing the sanction of cinematograph films for exhibition.
37. Betting and gambling.See item 36.
38. Offences against laws with respect to any of the matters in this See item 37.
List
39. Inquiries and statistics for the purpose of any of the matters in See item 38.
this List.
40. Land revenue, including the assessment and collection of re- See item 39.
venue, the maintenance of land records, survey for revenue
purposes and records of rights, and alienation of revenue.
41. Duties of excise on the following goods manufactured or pro¬
duced in the Province and countervailing duties at the same or
lower rates on similar goods manufactured or produced else¬
where in the territories of the Federation :
(a) alcoholic liquors for human consumption ;
(b) opium, Indian hemp and other narcotic drugs and narcotics ;
non-narcotic drugs;
(c) medicinal and toilet preparations containing alcohol or any See item 40.
substance included in sub-paragraph (b) of this entry.
42. Taxes on agricultural income . See item 41.
43. Taxes on lands and buildings, hearths and windows . . See item 42.
44. Duties in respect of succession to agricultural land . . See item 43.
45. Estate duty in respect of agricultural land .... See item 43-A.
46. Taxes on mineral rights, subject to any limitations imposed by See item 44.
any Act of the Federal Parliament relating to mineral develop¬
ment
47. Capitation taxes.See item 45.
48. Taxes on professions, trades, callings and employments . . See item 46.
49. Taxes on animals and boats.See item 47.
50. Taxes on the sale of goods and on advertisements . . See item 48.
51. Taxes on vehicles suitable for use on roads, whether mechani- See item 48-A.
cally propelled or not, including tramcars.
52. Taxes on the consumption or sale of electricity . See item 48-B.
53. Cesses on the entry of goods into a local area for consumption, See item 49.
use or sale therein.
54. Taxes on luxuries, including taxes on entertainments, amuse- See item 50.
ments, betting and gambling.
55. The rates of stamp duty in respect of documents other than See item 51.
those specified in the provisions of List I with regard to rates
of stamp duty.
56. Dues on passengers and goods carried on inland waterways . See item 52.
57. Tolls.See item 53.
58. Fees in respect of any of the matters in this List, but not includ- See item 54.
ing fees taken in any court.
Note : Item (7) of the Provincial List in the Seventh Schedule is not included in List
II or III of the Report
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794
FRAMING OF INDIA S CONSTITUTION
(C) CONCURRENT SUBJECTS AS SHOWN IN THE SECOND REPORT OF THE UNION
POWERS COMMITTEE AND THE SEVENTH SCHEDULE OF THE 1935 ACT
[Mote: Union Powers Committee’s first Report did not contain Concurrent List.]
Union Powers Committee Second Report Govt, of India Act.
1935—7th Schedule
LIST HI—Concurrent Legislative List
1. Criminal Law, including all matters included in the Indian
Penal Code at the date of commencement of this Constitution,
but excluding offences against laws with respect to any of the
matters specified in List I or II and excluding the use of the
naval, military and air forces in aid of the civil power.
2. Criminal Procedure, including all matters included in the
Code of Criminal Procedure at the date of commencement
of this Constitution.
3. Removal of prisoners and accused persons from one unit to
another unit.
4. Civil Procedure, including the Law of Limitation and all
matters included in the Code of Civil Procedure at the date
of commencement of this Constitution; the recovery in a
Governor’s Province or a Chief Commissioner’s Province of
claims in respect of taxes and other public demands, including
arrears of land revenue, and sums recoverable as such, arising
outside that Province.
5. Evidence and oaths ; recognition of laws, public acts and
records and judicial proceedings.
6. Marriage and divorce; infants and minors; adoption
7. Wills, intestacy, and succession, save as regards agricultural
land.
8. Transfer of property other than agricultural land; registration
of deeds and documents.
9. Trusts and trustees .
10. Contracts, including partnership, agency, contracts of car¬
riage, and other special forms of contracts, but not including
contracts relating to agricultural land.
11. Arbitration.
12. Bankruptcy and insolvency.
13. Administrators-general and official trustees
14. Stamp duties other than duties or fees collected by means of
judicial stamps, but not including rates of stamp duty.
15. Actionable wrongs, save in so far as included in laws with
respect to any of the matters specified in List II.
16. Jurisdiction and powers of all courts, except the Supreme
Court, with respect to any of the matters in this List.
17. Legal, medical and other professions ....
18. Newspapers, books and printing presses ....
19. Lunacy and mental deficiency, including places for the recep¬
tion or treatment of lunatics and mental deficients.
20. Poisons and dangerous drugs.
LIST III—Concurrent
Legislative List
See item 1.
See item 2.
See item 3.
See item 4.
See item 5.
See item 6.
See item 7.
See item 8.
See item 9.
See item 10.
See item 11.
See item 12.
See item 12.
See item 13.
See item 14.
See item 15.
See item 16.
See item 17.
See item 18.
See item 19.
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SECOND REPORT OF THE UNION POWERS COMMITTEE
795
I
II
21. Mechanically propelled vehicles.
22. Boilers.
23. Prevention of cruelty to animals.
24. Vagrancy; nomadic and migratory tribes ....
25. Factories.
26. Welfare of labour; conditions of labour; provident funds;
employers* liability and workmen's compensation; health
insurance, including invalidity pensions; old age pensions.
27. Unemployment and social insurance.
28. Trade unions; industrial and labour disputes
29. The prevention of the extension from one unit to another of
infectious or contagious diseases or pests affecting men, ani¬
mals or plants.
30. Electricity.
31. Shipping and navigation on inland waterways as regards
mechanically propelled vessels, and the rule of the road on
such waterways, and the carriage of passengers and goods on
inland waterways subject to the provisions of List I with
respect to Federal waterways.
32. The sanctioning of cinematograph films for exhibition
33. Persons subjected to preventive detention under Federal
authority.
34. Economic and social planning.
35. Inquiries and statistics for the purpose of any of the matters
in this List.
36. Fees in respect of any of the matters in this List, but not in¬
cluding fees taken in any court.
See item 20.
See item 21.
See item 22.
See item 23.
See item 26.
See item 27.
See item 28.
See item 29.
See item 30.
See item 31.
See item 32.
See item 33.
See item 34.
Nil.
See items 24 and 35.
See items 25 and 36.
(m) GOPALASWAMI AYYANGAR’S SPEECH MOVING THE REPORT FOR
CONSIDERATION
August 20, 1947
Sir, 1 beg to move—
That it be resolved that the Constituent Assembly do proceed to take into
consideration the Second Report on the scope of Union powers submitted
by the Committee appointed in pursuance of the resolution of the Assembly
of the 25th January, 1947.
Sir, copies erf this report have already been circulated to Hon’ble Members;
but in placing this report before the House, I would like to say a few
words, first as to how this report has come to be presented to the House.
The House will remember that as long ago as the 25th January, 1947,
this committee was brought into being by a motion moved by Mr. Raja*
gopalachari whom we are all proud to find now as the Governor of one
erf the most important Provinces of this Dominion.
* * *
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FRAMING OF INDIA’S CONSTITUTION
Sir, at the time this Resolution was adopted, what we were attempting to
do was to implement the scheme in the Cabinet Mission Plan. That plan,
as the House will remember, provided for a federation of Provinces and
States and the assignment of a certain limited number of subjects, broadly
described, to the Federation, and for various other details as regards both
the substance and the procedure which the leaders of the two great parties
in the country had already accepted. Now, one of the important matters
that had to be tackled by this House in connection with that {dan was the
scope of the subjects that were assigned to the Centre in that plan. Those
subjects were very broadly described, as I said. They consisted of defence,
external affairs and communications, and the finance necessary for these
subjects. Well, one of the items in that plan which had been accepted was
that constitutions had to be framed both for the Provinces and the Centre,
the Federation, as also for any Groups, if the decision of the House was
in favour of setting up such Groups. The constitutions for the Provinces
and Groups were proposed to be made in the sections into which this
Assembly was to be divided after its preliminary meeting. Before the work
of framing those constitutions was taken up it was considered necessary that
some indication should be given as to the orbit—if I may use the word—of
the jurisdiction of the Centre, that is to say, the subjects which would be
within the sphere of the Federation, so that the remaining subjects might be
catered for in the constitutions of the Provinces or of the Provinces and
Groups, if Groups came to be decided on. It was for the purpose of imple¬
menting this object that it was decided that we should first undertake an
investigation of the individual subjects which would fall within these four
broad categories, and few that purpose we appointed a committee to make
this investigation and submit a report to the House. That committee met, and
on the 17th of April, I think, it made a report. That report was presented
to the House by me on the 28th April. In presenting it, I said I was not
placing before the House any motion for the consideration of the report
because the conditions at that time were so fluid that we would only have
wasted a considerable amount of the time of this House in considering that
report which was bound to become out-of-date within a few weeks. As a
matter of fad, a very fateful political derision was impending at that time
and we did not know what die nature of that decision was going to be,
whether India was going to remain united or whether it was going to be
divided and if so, what other details would have to be filled in. In those
circumstances, I suggested that the House need not consider that first report
of this committee at that time. I also pointed out that it would be necessary
for the committee to meet again and review the recommendations it had
embodied in its first report in the light of political decisions that might be
taken very soon after. As the House is aware, that decision was taken on
the 3rd June and that decision started being implemented from almost that
date; since then we have had the Indian Independence Act enacted by
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SECOND RBPORT OF THE UNION POWERS COMMITTEE
797
Parliament. Well. Sir, that Act has given us two Do mini ons in what was
India, before the 15tb of August.
We are now a Dominion. We have walked into independence. I deli¬
berately say ‘walked into independence’ because I do not think we went and
seized it. It was there. We walked in and said we had taken over power,
and we have now in working order a constitution which is, if I may say so,
a combination of the provisions of the Indian Independence Act and the
provisions of the Government of India Act, 1935, as adapted under the
provisions of the Indian Independence Act.
Sir, that is the present state of things. The Union Powers Committee
met again after the 28th of April at a time when even the Indian Indepen¬
dence Bill had not been introduced in Parliament. We knew of course
that such a Bill was going to be introduced, but we were not quite sure
at the time we settled our second report what the provisions of that Act
would finally look like. Well, we did make that report. We have since
had this Independence Act. What we have now is a Dominion and a
Dominion, if I may describe it—possibly it has been described so in the
adaptations of the Government of India Act—I am not sure of it because
we are yet to be supplied with copies of the Gazette Extraordinary which
is supposed to have been issued on the 14th night or the 15th morning;
but I take it. Sir, that that adaptation describes this Dominion as a Union
comprising those Provinces of what was British India as have not seceded
into the new Dominion of Pakistan. It comprises also those Indian States
which have acceded to the Dominion. When I said Provinces, 1 should
have referred to two kinds of Provinces that we have in this country,
namely, the Governors’ Provinces and the Chief Commissioners* Provinces.
In addition to that, there may be other areas which may be included in the
Dominion. Thus we have really a federal Union now in this country, and
that federal Union will have to be administered in accordance with the
provisions of the Indian Independence Act and the Government of India
Act as modified. Now, Sir, we, in this Report of the Union Powers Com¬
mittee, have nothing to do with the federal Union which now exists. What
we are attempting to establish is a Federation in the future, and, in consi¬
dering what that Federation should be, we have got to take note of the
essentials that any federal constitution has to provide for, and one of
the essential principles of a federal constitution is that it must provide
for a method of dividing sovereign powers so that the Government at the
Centre and the Governments in the units are each within a defined sphere,
coordinate and independent. Perhaps I may quote for the information
of the House the definition in orthodox terms of what a Federation should
be as visualized by thinkers on political science, by people who have
engaged themselves in the framing of federal constitutions. Here, for
instance, is a description which I take from the Report of the Royal
Commission on the Australian Constitution in 1929. For this definition
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FRAMING OF INDIA’S CONSTITUTION
the person responsible was Sir Robot Gamut, a name very well known
in the history of federal constitutions. He describes Federation as “a
form of government in which sovereignty or political power is divided
between the central and local governments so that each of them, within its
own sphere, is independent of the other”. I call this, Sr, an orthodox
definition because, if we look round the world and lode at the federal
constitutions that are actually in being, l am almost sure that not one of
them will be found to conform rigidly to the actual terms of this definition.
The line between the Centre and the units is not so definitely fixed as this
definition would assume. There are relations between the Centre and the
units. There are cases where the units have to depend upon the Centre.
There are controlling powers vested in the Federation in emergencies, when
the Federation could override the jurisdiction of the units and take over
things into its own hands, so that this absolute independence of function¬
ing, which is contemplated in the definition, has not been realized in
practice. But there is one fact which stands out in the history of Federa¬
tions, and that is this: it is necessary for us to demarcate the sphere within
which the Centre on the one hand and the units on the other could exercise
sovereign powers, and that is really at the back of all the attempts that
have been made in the various Federations to demarcate the subjects which
should be assigned to the Centre and the subjects which should be assign¬
ed to the units or retained by the units, according to the view that is taken
as to where residuary power should finally be lodged.
Now, Sir, with regard to our country, we are confronted with problems
which have not confronted other Federations in history. We have decid¬
ed to bring into a Federation areas which were under British sovereignty
before the 15th erf August, as also areas which were in theory independent
but which were under the suzerainty of the British Crown. Now, to bring
these two areas under one Federation confronts us with problems which
the framers of federal constitutions elsewhere have not had to tackle; and
there is this further fact Provinces have to be provided for under a
scheme of government which is not monarchical. Indian States have to
come into the Federation and to remain there under a monarchical form
of government But I am one of those who think that the substance of
democratic government is not affected by a difference such as the one I
have referred to, whether it is a monarchical form of government or it is a
republican form of government.
What we are all wedded to in this House, so far as I can gauge the
opinion of this House, is a Government which is responsible to the legisla¬
ture. That responsible government you can achieve under a monarchical
system, as well as under a republican system. TTiat being so, in essence,
we can easily get over the superficial difficulties that are posed by the
existence of these two systems in the two areas of this country and develop
a federal constitution which would bring about a harmonious coordination
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SBCOND REPORT OF THE UNION POWERS COMMITTEE
799
of governmental activities in these two sets of areas.
Well Sr, in framing our Constitution we have kept this constantly in
view. On this committee connected with Union powers we have kept the
same principle constantly in view.
Now let me draw the attention of the House to one or two more peculi¬
arities in the work that we are called upon to do. There is a certain amount
of recognition which has been accorded to the principle of our making a
difference between what were British Indian Provinces in the past and the
Indian States, as regards the quantum of jurisdiction which we shall assign
to the Centre. It has been taken as conceded that the States have to cede
jurisdiction, have to accede to the Federation; and while it is recognised
that that accession should at least be in respect of a certain minimum
number of subjects, accession with regard to the other federal subjects
has to be with their consent. I am glad to be able to say that the accredit¬
ed Constitutional Advisers in Indian States have generally recognized, and
also I think the representatives of the people of the Indian States have
generally recognized the wisdom of agreeing, if possible, to a wider range
of subjects to be assigned to the Centre than the subjects which could
come within the four corners of defence, external affairs and communi¬
cations. But the only thing I would appeal to the House to do is to cany
our persuasion of these Advisers to the point of their recognizing that there
is nothing in the Constitution that we shall be framing which could act as
a discouragement to their implementing what I know they would be only
too glad to implement if they were satisfied on the point I have mentioned.
Now, Sir, the fact that we have to make this distinction between the
quantum of jurisdiction that is assigned to the Centre by die States on the
one hand and to what were British Indian Provinces on the other, has
materially affected the nature of the report that this committee has decided
to present to this House. You will notice that there are three lists of
subjects attached to the report and they are described as the Federal List,
the Provincial List and the Concurrent List. The Federal List is the only
one with which the States are immediately concerned.
Now, there is another point of distinction to which I should draw
attention. When we were merely trying to implement the Cabinet Mission
Plan, we accepted the proposal of the Cabinet Mission that subjects not
assigned to the Centre would be deemed to be assigned to the Provinces,
and, in the case of the States, the language used was “Subjects not ceded
by the States to the Federation would be retained by them". Now. in
substance, it more or less amounted to the same thing, viz., having listed
out federal subjects; what remained, viz., the residuary subjects, would be
with the Provinces in the one case and with the States in the other.
Now, Sir, when this committee met after its first report had been present¬
ed, we were relieved of the shackles which we had imposed on ourselves on
account of the acceptance of the Cabinet Mission Plan and the committee
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FRAMING OF INDIA’S CONSTITUTION
came to the conclusion that we should make the Centre in this country
as strong as possible consistent with leaving a fairly wide range of subjects
to the Provinces in which they would have the utmost freedom to order
things as they liked. In accordance with this view, a decision was taken
that we should make three exhaustive lists, one of the federal subjects,
another of the provincial subjects and the third of the concurrent subjects
and that, if there was any residue left at all, if in the future any subject
cropped up which could not be accommodated in (me of these three lists,
then that subject should be deemed to remain with the Centre so far as
the Provinces are concerned.
This decision, however, is not one which the committee has applied to
the States. You will find a reference to this in the report. What is said
there is that these residuary subjects will remain with the States unless the
States are willing to cede them to the Centre. Well, I do not know if those
who represent the States in this House will take any decision of the kind
which perhaps the committee hoped for when it said so; but we have got
to take things as they are.
There is another matter which it is important that we should recognize.
Residuary subjects in the case of Provinces are subjects which are not
accommodated in any of the three long lists that we have appended to
the report. Residuary subjects in the case of the States would really mean
all subjects which are not included in the Federal List I want to draw
attention to this, because I know my Hon’ble friend Dr. Ambedkar would
rather see that the States accede also on certain items which are included
in the Concurrent List, if not the whole of that List. There is a school of
opinion in favour of that. But, as things stand now, as the report stands
today, all the subjects included in the Provincial List, all the subjects includ¬
ed in the Concurrent List, and whatever subjects may not be included in
the Federal List are with the States. That is a distinction which I think it is
necessary for the House to remember in considering this report. Sir, so
far as this report is concerned, there is one matter to which I should like
to draw attention if only for the purpose of avoiding possible apprehensions
as to whether certain things are included in it or excluded from it. The
first report gave a list of subjects under each of these four heads. It also
made certain recommendations as regards the inclusion of certain other
provisions in the Constitution which may not be included in the lists them¬
selves, for instance the last sentence of paragraph 2(a) of the first report
which referred to our making some provision so far as defence matters
were concerned similar to the provisions contained in sections 102 and
126(a) of the Government of India Act. Then, Sir, there is the penultimate
sub-paragraph of paragraph 2(d) in which, in reference to the wishes of the
representatives erf States, it was decided by the committee that the States
should have a certain amount of time within which they could reorder
their financial systems in such a way that they could be brought up to the
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SECOND REPORT OF THE UNION POWERS COMMITTEE
801
standard of the rest of India and that provision is there and the second
report does not cancel it.
* * *
Sir, what I wish to say is that though the motion is that the second
report of this committee be taken into consideration, I think, the House
is entitled to take into consideration also those portions of the first report
which are not in conflict with what is said in the second one Sir, with
regard to these lists themselves, any person who superficially glances
through these lists might probably get the impression that they are too
long, particularly the Federal List which consists of 87 items. People have
run away with the impression that this committee has stolen a number of
items from the Provincial and Concurrent Lists and put them in the Federal
List and made it unduly long. I think, if honourable members would scruti¬
nize these lists and compare them with the lists in the Act of 1935, it would
be difficult for them to find—perhaps with (me or two stray exceptions—
any cases where we have encroached upon the sphere assigned to the
Provinces by that Act. There is also one other point that I wish to make
so far as the Federal List is concerned. We have cut up a number of items
in the Federal List into separate items and that is one reason why the number
has increased so much. In other cases we have adopted certain items from
other constitutions which we did not find in the Government of India Act,
but none of these are in the opinion of the committee of such a character
that they should necessarily go either in the Provincial or Concurrent List.
There is another matter in this connection to which perhaps I may refer.
One of the headaches of the Indian Independence Act, I mean the headaches
caused in this country by the Indian Independence Act, was the manner in
which practically it encouraged the cutting of the political connection between
the Government of India and the Governments of the Indian States. If
that Act, or rather if that Bill, had become law in the form in which it
was originally framed, perhaps the disconnection would have been complete,
but certain steps were taken in order to introduce into that Bill provisions
which were intended to avert that calamity. But even so, what was put
into the Act as enacted by Parliament, was not half of what was demanded
from here with the full support of the statesman who is now the Governor-
General of this Dominion. What we got was only a partial recognition of
the point of view that was urged from here, and that only tried to maintain
certain economic connections that exist between the Centre and the Indian
States. It left the continuance of the political connection very much in the
air. In fact, legally speaking, it cut off that connection, unless some steps
were taken to revive that connection by some means or other, and I may
here say that, happily for this country, this revival of the connection has
been brought about, and the result is that today we are in the Dominion of
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FRAMING OF INDIA’S CONSTITUTION
India under the Indian Independence Act in a much better position as
regards this political connection than we were under the Act of 1935.
The overwhelming body of States coming within the geographical boun¬
daries of the Indian Dominion have acceded to the Dominion. They have
accepted the position that the Dominion can make laws in respect of the
subjects on which they have acceded, a state of things which did not exist
before the 15th of August. They have, most of them, I believe, sent repre¬
sentatives to the Constituent Assembly and this Constituent Assembly is
going to function also as the Legislature of our Dominion, so that the
political and the constitutional connection that exists today between die
States and the Centre is much closer than it ever was during the last 150
years. I only say political and constitutional connection. I do not refer to the
effectiveness of the control that was exercised over Indian States in the past.
That may have been perhaps a little more efficient than may be posable
under the existing state of things, but what I wish to draw particular attention
to is that we have erected an organic political and constitutional structure
which has commenced to function from the 15th of August. The credit for
this, I think, should primarily go to the great awakening of public opinion in
the States. It should next go, I think, to the well considered policy of inviting
the accession of Indian States to the Dominion which was announced by
Sardar Vallabhbhai Patel who presides over the States Department today.
But above all I should say that the actual accession of practically the over¬
whelming bulk of Indian States, the credit for that should go to die statesman¬
ship and the genius for what he himself has called open diplomacy with
which Lord Mountbatten has roped them in. I say this advisedly, because
I think that but for the energy and the consummate skill which he has
employed in this matter, we might not have reached the result which we are
so happy to see today.
Now, Sir, I was mentioning this in order to point out that there are some
rather hazy opinions as to what this accession means. It is said that the
States have acceded only on three subjects. It is true there are three subjects,
described in very broad terms but the actual Instrument of Accession which
they have signed has detailed the items which come under each of these
three heads and you will find that they really come to somewhere about
eighteen or twenty. If we cut them up as in the list attached to the Union
Powers Committee’s Report, the number will probably be larger. The reason
why 1 point out this particular fact is that representatives of States who are in
this House are very substantially interested in the business which has got to
be transacted here whether it is by way of constitution-making or it is by
way of legislation or control over central administration. They are vitally
interested in this matter and I should like all of them to feel that there is
absolutely no distinction between them and other representatives of India
who are in this House. Now, Sir, having said that, I should finally refer
to these three lists themselves. The first question I dare say which will
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SECOND REPORT OF THE UNION POWERS COMMITTEE
803
exercise the minds of many Honourable Members here would be whether,
after all, this kind of distinction as regards the lodgement of the residuary
powers should continue. There are two ways of removing that distinction.
One is perhaps to go back to the Cabinet Mission Plan—in view of the fact
that we have exhaustively described the subjects in the three lists and lodged
the residuary powers in the case of the Provinces also in those Provinces. The
second proposition is one which the States might consider. Very eminent
statesmen connected with the administration of Indian States have contend¬
ed that what they wanted was a strong Centre and that if the Centre was
made strong their hesitations about coming into the Constituent Assembly
and participating in its labours would disappear. Well, if that view is
concurred in by their colleagues here as also by the peoples’ representatives
from the Indian States, it is quite up to them to consider the alternative of
modifying the report of this committee and agreeing to the lodgement of
residuary powers in the Centre itself. Well, Sir, that will be one of the
things which this House will have very seriously to consider. The report
of the committee is, I must emphasize, however, in favour of residuary
powers being with the States in the case of the States and with the Centre
in the case of the Provinces. Sir, I do not wish to take up more of the
time of the House. I move.
(IV) REPORT AS ADOPTED BY THE CONSTITUENT ASSEMBLY
August 1947
LIST I—FEDERAL LEGISLATIVE LIST
1. The defence of the territories of the Federation and of every part there
of and generally all preparations for defence, as well as all such acts as may
be conducive in times erf war to its successful prosecution and after its
termination to effective demobilization.
2. Requisitioning of lands for defence purposes including training and
manoeuvres.
3. Central Intelligence Bureau.
4. Preventive detention in the territories of the Federation for reasons of
State.
5. The raising, training, maintenance and control of naval, military and
air forces and their employment; the strength, organization and control of
the armed forces raised and employed in Indian States.
6. Industries declared by federal law as being necessary for the purpose
of defence or for the prosecution of war.
7. Naval, military and air force works.
*8. Local self-government in cantonment areas, the constitution and powers
*Con>ideration held over.
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FRAMING OF INDIA’S CONSTITUTION
within such areas of cantonment authorities, the regulation of house accom¬
modation in such areas and the delimitation of such areas.
9. Arms, fire-arms, amm unition and explosives.
10. Atomic energy, and mineral resources essential to its production.
11. Foreign affairs; all matters which bring the Federation into relation
with any foreign country.
12. Diplomatic, consular and trade representation.
13. United Nations Organisation.
14. Participation in international conferences, associations and other bodies
and implementing of decisions made thereat.
15. War and peace.
16. The entering into and implementing of treaties and agreements with
foreign countries.
17. Trade and commerce with foreign countries.
18. Foreign loans.
19. Citizenship, naturalization and aliens.
20. Extradition.
21. Passports and visas.
22. Foreign jurisdiction.
23. Piracies, 'elonies and offences against the law of nations committed
on the high seas and in the air.
24. Admission into, and emigration and expulsion from, the territories of
the Federation; pilgrimages to places beyond India.
25. Port quarantine; seamen’s and marine hospitals and hospitals con¬
nected with port quarantine.
26. Import and export across customs frontiers as defined by the Federal
Government
27. The institutions known on the 15th day of August, 1947, as the Impe¬
rial Library, the Indian Museum, the Imperial War Museum, the Victoria
Memorial and any other institution financed by the Federation wholly or
in part and declared by Federal law to be an institution of national import¬
ance.
28. The institutions known on the 15th day of August, 1947, as the Benares
Hindu University and the Aligarh Muslim University.
29. Airways.
30. National highways declared to be such by Federal law.
31. Shipping and navigation on inland waterways, declared by Federal
law to be Federal waterways, as regards mechanically propelled vessels, and
the rule of the road on such waterways ; carriage of passengers and goods on
such waterways.
32. (a) Posts and telegraphs: provided that the rights existing in favour
of any individual State unit at the commencement of this Constitution
shall be preserved to the unit until they are modified or extinguished by
agreement between the Federation and unit concerned or are acquired by the
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SECOND REPORT OF THE UNION POWERS COMMITTEE
805
Federation subject, however, always to the power of the Federal Parliament
to make laws for their regulation and control.
(b) Federal telephones, wireless, broadcasting and other like forms of
communication; the regulation and control of all other telephones, wire¬
less, broadcasting and other like forms of communications.
(c) Post Office Savings Bank.
33. Federal railways; the regulation of all railways, other than minor
railways in respect of safety, maximum and minimum rates and fares,
station and service terminal charges, interchange of traffic and the responsi¬
bility of railway administrations as carriers of goods and passengers; the
regulation of minor railways in respect of safety and the responsibility of
the administrations of such railways as carriers of goods and passengers.
34. Maritime shipping and navigation, including shipping and navigation
on tidal waters; provision of education and training for the mercantile
marine and regulation of such education and training provided by units and
other agencies.
35. Admiralty jurisdiction.
36. Ports declared to be major ports by or under Federal law or existing
Indian law including their delimitation; and the constitution and powers
of port authorities therein.
37. Aircraft and air navigation; provision of aerodromes; regulation and
organization of air traffic and of aerodromes; provision for aeronautical
education and training and regulation of such education and training
provided by units and other agencies.
GIPN—SI—2IIPA/64—3,000
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